Human Rights Commission Act 2005

23 February 2026. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 23 February 2026. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication includes amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

contents 1 Page 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Act—application of Criminal Code etc 2 6 Main objects of Act 3 6A What is a prescribed service? 4 7 What is a health service? 5 8 What is a disability service? 5 8A What is a service for children and young people? 6 9 What is a service for older people? 7 9A What is a service for victims of crime? 7 10 Who is a provider? 7

Page contents 2 Human Rights Commission Act 2005 Division 3.1 Establishment, constitution and functions of commission 11 Establishment of commission 9 12 Members of commission 9 13 Commission’s collegiate nature to be promoted 9 14 Commission’s functions 10 15 Functions and human rights 11 16 Independence of commission 11 17 Minister’s directions 11 18 President’s functions 11 18A Governance and corporate support protocol 14 18B Client services charter 15 18C Operations protocol 15 18D Appointment of commission members 16 18E Ending appointments 16 18F Delegation of member’s functions 17 Division 3.3 Children and young people commissioner 19B Children and young people commissioner’s functions 18 19C Advisory committees for services for children and young people 19 Division 3.4 Disability and community services commissioner 21 Disability and community services commissioner’s functions 19 23 Discrimination commissioner’s functions 20 Division 3.6 Health services commissioner 25 Health services commissioner’s functions 21 Division 3.7 Human rights commissioner 27 Human rights commissioner’s functions 21 27B Public advocate’s functions 22 27BA Public advocate to report to ACAT 24

Page contents 3 27BB Disclosure of information about investigations by public advocate 24 27BC Engagement of lawyer by public advocate 25 Division 3.7B Victims of crime commissioner 27C Victims of crime commissioner’s functions 25 30 Time and place of commission meetings 25 31 Presiding member at meetings 26 32 Quorum at meetings 26 33 Voting at meetings 26 34 Individual with more than 1 role 26 35 Conduct of meetings etc 27 Division 3.10 Consultants of commission 37 Consultants of commission 27 38 Outline—div 4.1 28 39 When may someone complain about a health service? 28 40 When may someone complain about a disability service? 29 40A When may someone complain about a service for children and young people? 30 41 When may someone complain about a service for older people? 30 41A When may someone complain about an occupancy dispute? 31 41B When may someone complain about treatment of vulnerable people? 31 41C Victims rights complaints 32 41D Human rights complaints 33 42 What complaints may be made under this Act? 34 43 Who may make a complaint under this Act? 35 44 Complaint to be in writing 37 44A Amendment of complaint 38 45 Commission’s obligation to be prompt and efficient 38 46 Complainant’s obligations in relation to complaint 41 47 Outline—div 4.2 43

Page contents 4 Human Rights Commission Act 2005 48 Consideration without complaint or appropriate complainant 44 49 Treatment of complaint if complaint dealt with as commission-initiated consideration 46 51 Referring complaints for conciliation 46 51A Referral of advocacy matters—children and young people 46 51B Referral of advocacy matters—vulnerable people 47 52 Considering complaints 48 52A Referral to appropriate statutory office-holder 48 52B Dealing with vulnerable person complaints 49 52C Effect of declaration made under Children and Young People Act 2008 50 53 Definitions—div 4.2A 50 53A Referral of discrimination complaints other than commission-initiated discrimination matters 51 53B Late application in exceptional circumstances 51 53BA Referral of commission-initiated discrimination matters 52 53C Parties to ACAT proceeding on discrimination complaint 52 53CA Onus of establishing complaint about discrimination etc 53 53D Reliance on exceptions and exemptions 54 53DA Commission to give information etc to ACAT 54 53DB Consideration of positive duty 55 53E Kinds of orders—unlawful acts under the Discrimination Act 55 53EA Effect of declaration made under Children and Young People Act 2008 56 53G Application—div 4.2B 57 53H Retirement village complaints—referral 57 53I Retirement village complaints—late application in exceptional circumstances 58 53IA Referral of commission-initiated (retirement villages) matter 58 53J Retirement village complaints—parties to ACAT proceeding 59 53K Retirement village complaints—ACAT jurisdiction 59 53L Retirement village complaints—commission to give information etc to ACAT 60 53M Retirement village complaints—ACAT orders 60

Page contents 5 53N Retirement village complaints—no monetary limit on jurisdiction of ACAT 60 53O Retirement village complaints—other options for dispute resolution 61 53Q Application—div 4.2C 61 53R Occupancy dispute complaints—referral 61 53S Occupancy dispute complaints—late application in exceptional circumstances 62 53SA Referral of commission-initiated (occupancy dispute) matter 62 53T Occupancy dispute complaints—parties to ACAT proceeding 63 53U Occupancy dispute complaints—ACAT jurisdiction 63 53V Occupancy dispute complaints—commission to give information etc to ACAT 64 53W Occupancy dispute complaints—ACAT orders 64 53X Occupancy dispute complaints—monetary limit on jurisdiction of ACAT 64 53Y Occupancy dispute complaints—other options for dispute resolution 65 53ZA Conversion practice complaints—referral 65 53ZB Conversion practice complaints—late application in exceptional circumstances 66 53ZBA Referral of commission-initiated (conversion practice) matter 66 53ZC Conversion practice complaints—parties to ACAT proceeding 67 53ZD Conversion practice complaints—commission to give information etc to ACAT 67 53ZE Conversion practice complaints—ACAT orders 68 53ZF Conversion practice complaints—no monetary limit on jurisdiction of ACAT 69 54 Outline—div 4.3 69 55 What is conciliation? 69 56 Delegation of commission’s function of conciliation 70 57 Parties to conciliation 70 58 Request for third party to attend 71 59 Compulsory attendance at conciliation 71 60 Conduct of conciliation 71

Page contents 6 Human Rights Commission Act 2005 62 Conciliated agreements 72 63 Use of conciliation agreement by commission 72 65 End of conciliation 73 66 Admissibility of evidence 73 67 Conciliation attendees protected from civil liability 74 68 Outline—div 4.4 74 69 Purpose of considering complaints 74 70 Single consideration of several complaints 74 71 Representative complaints 75 71A Commission may treat new entity as respondent 75 72 Conduct of consideration 76 73 Power to ask for information, documents and other things 76 74 Requiring attendance etc 78 75 Privileges against self-incrimination and exposure to civil penalty 80 76 Commission may keep document or other thing etc 81 77 Outline—div 4.5 81 78 When complaints can be closed 82 79 Reopening complaints 84 80 How complaints are closed 84 81 Final report 85 82 Closing discrimination complaints 85 82A Closing retirement village complaints 86 82B Closing occupancy dispute complaints 86 82C Closing conversion practice complaints 87 82D Closing human rights complaints if conciliation unlikely to succeed 88 83 Third-party reports 89 84 Commission-initiated reports 90 85 Responding to recommendations 91 86 Publication of name and details of non-complying entity 91 86A Publication of information in relation to human rights complaints 93 87 Reporting to Minister 93 88 Discrimination referral statements 94

Page contents 7 88A Retirement village referral statements 94 88B Occupancy dispute referral statements 95 88C Conversion practice referral statements 95 Part 5 Additional matters for health service complaints Division 5.1 Health code of health rights and responsibilities 89 Approval of health code 96 90 Contents of health code 96 Division 5.2 Relationship between commission, health profession boards and veterinary practitioners board 91 Meaning of registered health practitioner and registered veterinary practitioner—div 5.2 97 92 Referral of complaints to boards 97 93 Complaints referred to veterinary practitioners board 98 94 Consideration of complaints 98 94A Definitions—div 5.3 99 94B Meaning of health care worker—div 5.3 100 94C Code of conduct may be prescribed 101 94D Code of conduct breach by public servants 101 94E Code of conduct breach by public servants—information sharing 102 94F Principles for making prohibition or condition order or public statement 103 94G Interim prohibition or condition order 104 94H Final prohibition or condition order 105 94I Public statement about health care worker or health service 106 94J Statement of reasons for prohibition or condition order or public statement 108 94K Correction of public statement 109 94L Variation of prohibition or condition order 109 94M Cancellation of prohibition or condition order 110 94N Health care worker must give notice of registration as health practitioner 111 94O Non-compliance with prohibition or condition order 112 94P Non-compliance with corresponding prohibition or condition order 112

Page contents 8 Human Rights Commission Act 2005 94Q Commission to keep register 113 94R Exchange of information 113 94S Meaning of reviewable decision––div 5.4 113 94T Reviewable decision notices 114 94U Applications for review 114 Part 5A Child safe standards 94V Child safe standards 115 94W Implementing child safe standards 115 94X Review of child safe standards 115 95 Information about complaints 116 96 Inspection of incorporated documents 116 97 Notification of certain incorporated documents 117 98 Victimisation etc 119 99 Secrecy 119 99A Information sharing between commissioners 121 99B Information sharing with Aboriginal and Torres Strait Islander children and young people commissioner 122 99C Cooperation with Aboriginal and Torres Strait Islander children and young people commissioner’s office 124 100 Protection of officials from liability 124 100A Protection of others from liability 125 100B Independence of DPP 125 101 Intergovernmental arrangements 126 102 Exercise of functions under intergovernmental arrangement 126 103 Determination of fees and expenses for people asked to attend conciliation 127 104 Approved forms 127 105 Regulation-making power 127 Part 8 Transitional—Human Rights (Complaints) Legislation Amendment Act 2023 125 Contravention of Human Rights Act 2004 before commencement day 128

Page contents 9 126 Expiry—pt 8 128 Part 9 Transitional—Justice and Community Safety Legislation Amendment Act 2025 127 Meaning of commencement day—pt 9 129 128 Person complained about taken to be respondent 129 129 Person complained about in complaint referred to ACAT not yet decided 129 130 Expiry—pt 9 129 Schedule 1 Reviewable decisions 130 Dictionary 131 1 About the endnotes 141 2 Abbreviation key 141 3 Legislation history 142 4 Amendment history 150 5 Earlier republications 170

An Act to establish the Human Rights Commission, and for other purposes

1 Name of Act This Act is the Human Rights Commission Act 2005.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘unlawful act, for division 4.2A (Discrimination complaints to ACAT)—see section 53.’ means that the term ‘unlawful act’ is defined in that section for division 4.2A. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Main objects of Act (1) The main object of the Act is to promote the human rights and welfare of people living in the ACT. (2) The main object is to be achieved by establishing a commission that will— (a) promote the provision of community education, information and advice in relation to human rights; and (b) identify and examine issues that affect the human rights and welfare of vulnerable groups in the community; and (c) make recommendations to government and non-government agencies on legislation, policies, practices and services that affect vulnerable groups in the community; and (d) promote understanding and acceptance of, and compliance with, the Discrimination Act 1991 and the Human Rights Act 2004; and (e) acknowledge, protect and promote the rights of victims; and (f) promote the protection of children and young people and people with a disability from abuse and exploitation; and (g) promote environments that are safe for children and young people by— (i) promoting the child safe standards prescribed under section 94V; and (ii) encouraging providers of services for children and young people to uphold the standards; and (h) promote improvements in the provision of prescribed services; and

(i) promote the rights of users of prescribed services; and (j) promote an awareness of the rights and responsibilities of users and providers of services to which this Act relates; and (k) provide an independent, fair and accessible process for the resolution of discrimination complaints, human rights complaints and complaints between users and providers of prescribed services; and (l) provide a process to encourage and assist users and providers of prescribed services to make improvements in the provision of services, particularly by encouraging and assisting service users and providers to contribute to the review and improvement of service quality; and (m) foster community discussion, and the provision of community education and information, about— (i) this Act and related Acts; and (ii) the operation of the commission; and (iii) the procedures for making complaints.

6A What is a prescribed service? For this Act, a prescribed service means— (a) a health service; and (b) a disability service; and (c) a service for children and young people; and (d) a service for older people; and (e) a service for victims of crime.

7 What is a health service? (1) For this Act, a health service is a service provided in the ACT to someone (the service user) for any of the following purposes: (a) assessing, recording, maintaining or improving the physical, mental or emotional health, comfort or wellbeing of the service user; (b) diagnosing or treating an illness, disability, disorder or condition of the service user. (2) In applying this Act in relation to a veterinary practitioner, a health service is a service provided to an animal (the service user) for any of the purposes mentioned in subsection (1) (a) or (b). (3) A health service includes— (a) a service provided by a health practitioner in the practitioner’s capacity as a health practitioner; and (b) a service provided specifically for carers of people receiving health services or carers of people with physical or mental conditions; and (c) a service provided by a veterinary practitioner in the practitioner’s capacity as a veterinary practitioner.

8 What is a disability service? (1) A disability service is a service provided in the ACT specifically for people with a disability or their carers. Examples of services for people with a disability or their carers 1 a service that provides home help, personal care, home maintenance or modification, food services, respite care, transport, assessment or referral of support needs, education, training and skill development, information services, coordination, case management and brokerage, recreation, advocacy, community access, accommodation support, rehabilitation, or employment services, specifically for people with a disability or their carers

2 a service provided in association with the use of premises for the care, treatment or accommodation of people with a disability disability means a disability that— (a) is attributable to an intellectual, psychiatric, sensory or physical impairment, or a combination of those impairments; and (b) is permanent or likely to be permanent; and (c) results in— (i) the person having a substantially reduced capacity for communication, learning or mobility; and (ii) the need for continuing support services for the person; and (d) may, but need not, be of a chronic episodic nature. Note Disability is defined differently for complaints about discrimination on the grounds of disability (see Discrimination Act 1991, s 5AA).

8A What is a service for children and young people? A service for children and young people is a service provided in the ACT specifically for children, young people, both children and young people, or their carers. Examples of services for children and young people and their carers 1 a service that provides care, respite care, transport, assessment or referral of support needs, education, training and skill development, information services, coordination, food services, case management and brokerage, recreation, advocacy, community access, accommodation support, rehabilitation or employment services specifically for children, young people, or their carers 2 a service provided in relation to the use of premises for the care, treatment or accommodation of children, young people, or their carers 3 a service provided in relation to a detention place, intensive therapy place or place of care under the Children and Young People Act 2008

9 What is a service for older people? A service for older people is a service provided in the ACT specifically for older people or their carers. Examples of services for older people 1 a service that provides home help, personal care, home maintenance or modification, food services, respite care, transport, assessment or referral of support needs, education, training and skill development, information services, coordination, case management and brokerage, recreation, advocacy, community access, accommodation support, rehabilitation, or employment services, specifically for older people or their carers 2 a service provided in association with the use of premises for the care, treatment or accommodation of older people.

9A What is a service for victims of crime? A service for victims of crime is a service provided in the ACT specifically for victims of crime. Examples—services for victims of crime • counselling and grief support services • court support services

10 Who is a provider? (1) For this Act, a provider of a service is an entity that provides, or holds out that it can provide, the service. (2) A provider of a service includes— (a) an entity that employs someone who— (i) provides the service; or (ii) holds out that the person can provide the service; and (b) a volunteer providing the service on behalf of someone else; and (c) someone who was a provider when the service was provided, but is no longer providing the service.

(3) However, a funding body does not provide a service only because the body pays for the service to be provided by someone else.

Establishment, constitution and functions of commission Division 3.1 Division 3.1 Establishment, constitution and functions of commission 11 Establishment of commission The Human Rights Commission (the commission) is established. 12 Members of commission (1) The commission has the following members: (a) the president; (b) the children and young people commissioner; (c) the disability and community services commissioner; (d) the discrimination commissioner; (e) the health services commissioner; (f) the human rights commissioner; (g) the public advocate; (h) the victims of crime commissioner. (2) The president of the commission is the human rights commissioner. (3) A person may hold 2 or more positions mentioned in subsection (1).

13 Commission’s collegiate nature to be promoted The commission members must act in a way that promotes the collegiate nature of the commission.

Division 3.1 Establishment, constitution and functions of commission

14 Commission’s functions (1) The commission has the following functions: (a) encouraging the resolution of complaints made under this Act, and assisting in their resolution, by providing an independent, fair and accessible process for resolving the complaints; (b) encouraging and assisting users and providers of prescribed services to make improvements in the provision of services, particularly by encouraging and assisting service users and providers to contribute to the review and improvement of service quality; (c) encouraging and assisting people providing prescribed services and people engaging in conduct that may be complained about under this Act, to develop and improve procedures for dealing with complaints; (d) identifying, inquiring into and reviewing issues relating to the matters that may be complained about under this Act; (e) exercising any other function given to the commission under this Act or another territory law. Note The following Acts give the commission functions: • Discrimination Act 1991 • Health Practitioner Regulation National Law (ACT) • Health Records (Privacy and Access) Act 1997 • Human Rights Act 2004 • Veterinary Practice Act 2018. (2) The commission must exercise its functions— (a) with regard to the principle— (i) of the indivisibility and universality of human rights; and (ii) that every person is free and equal in dignity and rights; and

(b) efficiently, with a view to providing the greatest possible benefit to the people of the ACT.

15 Functions and human rights The commission must act in accordance with the human rights under the Human Rights Act 2004 when exercising a function under this Act or a related Act.

16 Independence of commission The commission is not subject to the direction of anyone else in relation to the exercise of a function under this Act or a related Act, subject to section 17.

17 Minister’s directions (1) The Minister may, in writing, direct the commission to inquire into and report to the Minister in relation to a matter that can be complained about under this Act. (2) The commission must comply with the direction.

18 President’s functions (1) The president has the following functions: (a) managing the administration of the commission; (b) the efficient and effective financial management of the commission’s resources; (c) ensuring the commission’s functions are exercised in an orderly and prompt way; (d) developing a governance and corporate support protocol in accordance with section 18A;

(e) developing a client service charter in accordance with section 18B; (f) developing an operations protocol in accordance with section 18C; (g) ensuring, as far as practicable, the commission’s functions are exercised in a way that takes into account, and is consistent with, the governance and corporate support protocol, the client service charter and the operations protocol; (h) reporting, or coordinating reporting, on behalf of the commission in accordance with subsection (2); (i) promoting community discussion, and providing community education and information, about— (i) this Act and related Acts; and (ii) the operation of the commission; and (iii) the procedures for making complaints; (j) advising the Minister about any matter in relation to this Act or a related Act; (k) collecting information about the operation of this Act and related Acts, and publishing the information; (l) dealing with complaints about the operation of the commission (but not a complaint about a decision of a commissioner in relation to a complaint made under division 4.1); (m) if the president considers that a commissioner has a real or perceived conflict of interest in relation to a complaint— considering the complaint or allocating responsibility for consideration of the complaint to another commissioner; (n) any other function given to the president under this Act or another territory law.

(2) The president— (a) must for each inquiry and review mentioned in section 14 (1) (d)— (i) report, in writing, to the Minister and other appropriate entities about the inquiry or review; and (ii) advise the Minister and other appropriate entities about those matters; and (b) is responsible for giving reports (other than a health practitioner report) under the following sections on behalf of the commission: (i) section 17 (Minister’s directions); (ii) section 83 (Third-party reports); (iii) section 84 (Commission-initiated reports); (iv) section 87 (Reporting to Minister); and (c) may report, in writing, to the Minister on the following systemic matters: (i) a matter of public importance relating to the commission, including how the commission handles complaints under the Act; (ii) a matter affecting the system— (A) for the protection of the rights of users of prescribed services (or a class of user) as a whole, rather than a matter affecting an individual alone; and (B) for the provision of prescribed services (or a class of prescribed services) as a whole, rather than a matter affecting an individual alone. (3) The president may exercise any function given to any other commissioner under this Act or another territory law.

(4) To remove any doubt, the Minister may, but need not, present advice mentioned in subsection (2) (a) to the Legislative Assembly. Note A report under s 87 must be presented to the Legislative Assembly. health practitioner report means— (a) a notification under the Health Practitioner Regulation National Law (ACT), section 150 (2); or (b) a report under that Law, section 150 (5A).

18A Governance and corporate support protocol (a) after consulting with the director-general and the other commissioners, prepare a draft governance and corporate support protocol for each 3-year period that includes— (i) how the responsible directorate and the commission will consult and communicate with each other; and (ii) a strategic plan for the 3-year period; and (iii) how funding will be allocated within the commission for each year in the 3-year period; and (iv) a budget for each commissioner mentioned in section 12 for each year in the 3-year period; and (v) performance criteria to be met by the commission in each year of the 3-year period; and (vi) financial and performance reporting and auditing requirements for the 3-year period; and (vii) processes for requesting funding; and (viii) anything else prescribed by regulation; and

(b) give the draft plan to the director-general for endorsement; and (c) publish the approved plan on the commission’s website.

18B Client services charter (a) every 3 years, after consulting with the ACT community for 8 weeks, prepare a client service charter that states— (i) how the commission will provide services to the community; and (ii) what the community can expect when dealing with the commission; and (b) publish the charter on the commission’s website.

18C Operations protocol (a) every 3 years, after consulting with the other commissioners, prepare a protocol that provides for the following: (i) how enquiries and complaints generally will be received by the commission; (ii) how enquiries will be dealt with within the commission; (iii) how complaints will be referred within the commission; (iv) how clients can access the commission’s services; (v) how the president undertakes advocacy and reporting on systemic matters under section 18 (2); (vi) the kinds of questions or matters that may be considered at a commission meeting under section 33; (vii) when complaints should be referred to other complaint handling entities;

(viii) anything else the commission considers appropriate; (ix) anything else prescribed by regulation; and Note For the making of complaints to the commission and how the commission deals with them, see pt 4. (b) publish the protocol on the commission’s website.

18D Appointment of commission members (1) The Executive must appoint the commission members. Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3. Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207). (2) However, the Executive must not appoint a person as a member unless satisfied that the person has the experience or expertise necessary to exercise the member’s functions. (3) A member must not be appointed for a term of longer than 5 years. Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint). (4) A member’s conditions of appointment are the conditions agreed between the Executive and the member, subject to any determination under the Remuneration Tribunal Act 1995.

18E Ending appointments (1) The Executive may end the appointment of a person as a commission member— (a) if the person contravenes a territory law; or (b) for misbehaviour; or

Appointment of commission members Division 3.2A (c) if the person becomes bankrupt or personally insolvent; or Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1. (d) if the person is convicted, in the ACT, of an offence punishable by imprisonment for at least 1 year; or (e) if the person is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year. (2) The Executive must end the person’s appointment— (a) if the person is absent, other than on leave approved by the Minister, for 14 consecutive days or for 28 days in any 12-month period; or (b) for physical or mental incapacity, if the incapacity substantially affects the exercise of the person’s functions. Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

18F Delegation of member’s functions A commission member may delegate the member’s functions under this Act or another territory law to another member or a commission staff member. Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

Division 3.3 Children and young people commissioner Division 3.3 Children and young people 19B Children and young people commissioner’s functions (1) The children and young people commissioner has the following functions: (a) to exercise functions for the commission in relation to services for children and young people; (b) to promote the implementation of the child safe standards by providers of services for children and young people, and encourage providers to uphold the standards; (c) to exercise any other function given to the commissioner under in relation to services for children and young people. (3) In exercising the children and young people commissioner’s functions, the commissioner must endeavour to— (a) consult with children and young people in ways that promote their participation in decision-making; and (b) listen to and seriously consider the views of children and young people; and (c) ensure that the commission is accessible to children and young people; and (d) be sensitive to the linguistically and culturally diverse backgrounds of children and young people.

Disability and community services commissioner Division 3.4

19C Advisory committees for services for children and young people (1) The commission may establish advisory committees to assist the commission to exercise its functions in relation to services for children and young people. (2) Without limiting the people who may be appointed to an advisory committee, the commission may appoint children and young people, and people with experience or expertise in relation to services for children and young people, to the committee. Division 3.4 Disability and community services

21 Disability and community services commissioner’s functions (1) The disability and community services commissioner has the following functions: (a) to exercise functions for the commission in relation to disability services; (b) to exercise functions for the commission in relation to services for older people; (c) to deal with the following complaints: (i) a children and young people service complaint; (ii) a disability service complaint; (iii) an older people service complaint; (iv) a vulnerable person complaint; (v) a victims rights complaint; (vi) a conversion practice complaint; (vii) a human rights complaint;

(d) to exercise any other function given to the commissioner under in relation to disability services. 23 Discrimination commissioner’s functions (1) The discrimination commissioner has the following functions: (a) to exercise functions for the commission in relation to discrimination; (b) to exercise any other function given to the commission under this Act or another territory law. (2) The functions of the commission in relation to discrimination include (a) to promote the right of people to be free from unlawful discrimination in— (i) the areas of work, education and access to premises; (ii) the provision of goods, services, facilities and accommodation; and (iii) the activities of clubs; (b) to promote the right of people to be free from sexual harassment in— (i) the areas of work, education and access to premises; and (ii) the provision of goods, services, facilities and accommodation; and (iii) the activities of clubs;

Health services commissioner Division 3.6 (c) to promote recognition and acceptance within the community of the equality of all people; (d) to promote recognition and acceptance within the community of the principle of equality of opportunity for all people. (3) The exercise of the function mentioned in subsection (1) (a) is subject in relation to discrimination. (4) A term used in subsection (2) has the same meaning as in the Discrimination Act 1991. Division 3.6 Health services commissioner

25 Health services commissioner’s functions (1) The health services commissioner has the following functions: (a) to exercise functions for the commission in relation to health services; Note See, for example, the Health Practitioner Regulation National Law (ACT), s 150 (Relationship with health complaints entity). in relation to health services and services for older people. Division 3.7 Human rights commissioner

27 Human rights commissioner’s functions (1) The human rights commissioner has the following functions: (a) to exercise functions for the commission in relation to human rights;

(2) The functions of the commission in relation to human rights include (a) to provide education about human rights and the Human Rights Act 2004; and (b) to advise the Minister on anything relevant to the operation of the Human Rights Act 2004. (3) The exercise of the function mentioned in subsection (1) (a) is subject in relation to human rights.

27B Public advocate’s functions (1) The public advocate has the following functions: (a) to advocate for the rights of people with a disability and, as part of advocating for those rights, doing the following: (i) fostering the provision of services and facilities for people with a disability; (ii) supporting the establishment of organisations that support people with a disability; (iii) encouraging the development of programs that benefit people with a disability (including advocacy programs, educational programs and programs to encourage people to act as guardians and managers); (iv) promoting the protection of people with a disability from abuse and exploitation;

Public advocate Division 3.7A (b) to advocate for the rights of children and young people and, as part of advocating for those rights, doing the following: (i) fostering the provision of services and facilities for (ii) supporting the establishment of organisations that support (iii) promoting the protection of children and young people from abuse and exploitation; (c) to represent forensic patients before the ACAT or a court; (d) to listen to and investigate concerns from children and young people about the provision of services for the protection of (e) investigate matters in relation to which the public advocate has a function; (f) monitoring the provision of services for the protection of (g) dealing, on behalf of people with a disability and children and young people, with entities providing services; (h) any other function given to the public advocate under this Act or any other territory law. Note The public advocate also has functions under the Children and Young People Act 2008, the Guardianship and Management of Property Act 1991 and the Mental Health Act 2015. disability means one of the following conditions if the condition gives rise to a need for protection from abuse, exploitation or neglect, or a combination of those things: (a) a physical, mental, psychological or intellectual condition; (b) a condition that would make a person a forensic patient.

forensic patient includes a person who has been— (a) apprehended by a police officer because the person’s behaviour or statements indicate to the officer that the person may have a mental disorder or mental illness; or (b) found by a court or the ACAT to be unfit to plead; or (c) acquitted of a criminal charge because of mental impairment; or (d) found guilty of a criminal offence and is, or while serving a sentence of imprisonment has become, a person with a mental disorder or mental illness. mental disorder—see the Mental Health Act 2015, section 9. mental illness—see the Mental Health Act 2015, section 10. 27BA Public advocate to report to ACAT The public advocate must report to the ACAT about a matter before the ACAT if asked by the ACAT. 27BB Disclosure of information about investigations by public advocate (1) Section 99 (Secrecy) does not prevent the public advocate from disclosing information to a person (including members of the public) about an investigation by the public advocate if the public advocate is satisfied that the disclosure is necessary and reasonable in the public interest. (2) However, the public advocate must not make a disclosure— (a) that is likely to prejudice the investigation; or (b) that includes an opinion that is (expressly or impliedly) critical of a person or body unless the public advocate has given the person, or the principal officer of the body, an opportunity to answer the criticism; or

Victims of crime commissioner Division 3.7B (c) if the investigation arises from a reported concern—that identifies the subject of the concern (directly or indirectly) unless it is necessary and reasonable to do so. 27BC Engagement of lawyer by public advocate The public advocate may engage a lawyer to appear before a court or the ACAT in relation to the exercise of the public advocate’s functions under this Act. Division 3.7B Victims of crime commissioner

27C Victims of crime commissioner’s functions (1) The victims of crime commissioner has the following functions: (a) to exercise functions for the commission in relation to services for victims of crime; Note The victims of crime commissioner also has functions under the Domestic Violence Agencies Act 1986, the Victims of Crime Act 1994 and the Victims of Crime (Financial Assistance) Act 2016. in relation to services for victims of crime.

30 Time and place of commission meetings (1) Meetings of the commission are to be held when and where it decides. (2) However, the commission must meet at least once each month. (3) The president may call a meeting of the commission.

(4) The president, when calling a meeting, must give the other members reasonable notice of the time and place of the meeting.

31 Presiding member at meetings (1) The president presides at all meetings at which the president is present. (2) If the president is absent, the member chosen by the members present presides.

32 Quorum at meetings Business may be carried on at a meeting of the commission only if at least 3 members of the commission are present.

33 Voting at meetings (1) At a meeting of the commission each member has a vote on each question to be decided. (2) A question is decided by a majority of the votes of the members present and voting but, if the votes are equal, the member presiding has the deciding vote.

34 Individual with more than 1 role (a) a person holds 2 or more positions under this Act; and (b) the person is a member of the commission because of each of the positions. The disability and community services commissioner may be appointed as the health services commissioner. (2) The person is only entitled to 1 vote at commission meetings.

Consultants of commission Division 3.10 (3) In working out whether 3 members are present at a meeting for section 32 (Quorum at meetings), the number of members is taken to be the number of individuals who are members.

35 Conduct of meetings etc (1) A meeting may be held using a method of communication, or a combination of methods of communication, that allows a commission member taking part to hear what each other member taking part says without the members being in each other’s presence. Examples a phone link, a satellite link, an internet or intranet link (2) A commission member who takes part in a meeting conducted under subsection (1) is taken, for all purposes, to be present at the meeting. (3) A resolution is a valid resolution of the commission, even if it is not passed at a meeting of the commission, if— (a) notice of the resolution is given under procedures decided by the commission; and (b) all members agree, in writing, to the proposed resolution. (4) The commission must keep minutes of its meetings. Division 3.10 Consultants of commission

37 Consultants of commission (1) The commission may engage consultants for this Act. (2) Consultants are to be engaged on terms decided by the commission. (3) However, this section does not give the commission a power to enter into a contract of employment.

38 Outline—div 4.1 This division sets out the complaints that may be made under this Act, who can complain and how.

39 When may someone complain about a health service? (1) A person may complain to the commission about a health service if— (b) the person believes that the provider of the service has acted inconsistently with any of the following: (i) the health code; (ii) if there is no health code—the health provision principles; (iii) the health care worker code of conduct prescribed under section 94C; (iv) a generally accepted standard of health service delivery expected of providers of the same kind as the provider; (v) any standard of practice applying to the provider under the Health Practitioner Regulation National Law (ACT) or the Veterinary Practice Act 2018; (vi) the National Standards for Mental Health Services endorsed by the Australian Health Ministers Advisory Council’s National Mental Health Working Group, as amended from time to time; (vii) any other standard prescribed by regulation; or

health provision principles—see section 90 (2). Note If the health services commissioner receives a complaint about a health practitioner, the commissioner must tell the national board for the practitioner’s health profession about the complaint. The national board and commissioner must try to reach agreement about how the complaint is to be dealt with (see Health Practitioner Regulation National Law (ACT), s 150).

40 When may someone complain about a disability service? A person may complain to the commission about a disability service if— (b) the person believes that the provider of the service has acted inconsistently with any of the following: (i) the Home and Community Care National Service Standards, as amended from time to time; (ii) the human rights principles set out in the Disability Services Act 1991, schedule 1; (iii) the requirements to be complied with in relation to the design and implementation of programs and services relating to people with disabilities set out in the Disability Services Act 1991, schedule 2; (iv) the National Standards for Mental Health Services endorsed by the Australian Health Ministers Advisory Council’s National Mental Health Working Group, as amended from time to time; (v) the generally accepted standard of service delivery

(vi) standards (if any) approved under the Disability Services Act 1991, section 5A (Approval of standards); (vii) any other standard prescribed by regulation; or Note For the availability and the appropriate version of the standards mentioned in par (b) (i) and (iv), see s 96 (Inspection of incorporated documents) and s 97 (Notification of certain incorporated documents) (see also dict, def incorporated document).

40A When may someone complain about a service for children and young people? A person may complain to the commission about a service for children and young people if— (b) the provider of the service has acted inconsistently with any of (i) the generally accepted standard of service delivery (ii) the child safe standards prescribed under section 94V; (iii) any other standard prescribed by regulation; or

41 When may someone complain about a service for older people? A person may complain to the commission about a service for older people if—

(b) the provider of the service has acted inconsistently with any of (i) the Home and Community Care National Service Standards, as amended from time to time; (ii) the generally accepted standard of service delivery (iii) the Retirement Villages Act 2012; (iv) any other standard prescribed by regulation; or

41A When may someone complain about an occupancy dispute? A person may complain to the commission about an occupancy dispute.

41B When may someone complain about treatment of vulnerable people? (1) A person may complain to the commission about the treatment of a vulnerable person if the person believes on reasonable grounds that the vulnerable person is subject to or at risk of abuse, neglect or exploitation. vulnerable person means an adult who— (a) has a disability within the meaning of the Disability Services Act 1991; or

(b) is at least 60 years old and— (i) has a disorder, illness or disease that affects the person’s thought processes, perception of reality, emotions or judgment or otherwise results in disturbed behaviour; or (ii) has an impairment that— (A) is intellectual, psychiatric, sensory or physical in nature; and (B) results in a substantially reduced capacity of the person for communication, learning or mobility; or (iii) for any other reason is socially isolated or unable to participate in the life of the person’s community.

41C Victims rights complaints (a) a person engages with a justice agency; and (b) the person believes the justice agency has not complied with their victims rights; and (c) the person is a victim. (2) The person may complain to the commission about the justice agency’s conduct (a victims rights complaint). Note Alternatively, a victim may make a justice agency complaint to a justice agency (see Victims of Crime Act 1994, s 18D) or may raise a victims rights concern with the victims of crime commissioner (see Victims of Crime Act 1994, s 18F).

(3) If the victims of crime commissioner refers a person’s victims rights concern to the commission under the Victims of Crime Act 1994, section 18G (3), the victims rights concern is taken to be a victims rights complaint made by the person to the commission under this Act. Note A person need not have made a justice agency complaint to a justice agency, nor raised a victims rights concern with the commissioner, under the Victims of Crime Act 1994 before making a victims rights complaint to the commission under this Act. victim—see the Victims of Crime Act 1994, section 6. victims rights—see the Victims of Crime Act 1994, section 14A. victims rights concern—see the Victims of Crime Act 1994, section 18F (2).

41D Human rights complaints (1) A person may complain to the commission about a public authority (a human rights complaint) if the person believes the public authority has acted in contravention of the Human Rights Act 2004, section 40B (Public authorities must act consistently with human rights). (2) However, the person must not make a human rights complaint unless the person— (a) has made a complaint to the relevant person about the contravention claimed; and (b) either— (i) has not received a response to the complaint within 45 days after making the complaint; or (ii) has received a response they consider to be inadequate.

(3) The commission may accept a person’s human rights complaint without requiring the person to comply with subsection (2) if— (a) the person makes another complaint under this Act in relation to— (i) the same act that constitutes the contravention claimed; or (ii) substantially the same circumstances or subject matter of the contravention claimed; or (b) the commission is satisfied on reasonable grounds that exceptional circumstances justify accepting the person’s human rights complaint. relevant person, for a complaint under subsection (2) (a), means the person who would be a respondent if the complaint was a human rights complaint.

42 What complaints may be made under this Act? (1) The following complaints may be made under this Act: (a) a children and young people service complaint; (b) a disability service complaint; (c) a complaint about an unlawful act under the Discrimination Act 1991 (a discrimination complaint); (d) a health service complaint; (e) a human rights complaint; (f) an older people service complaint; (g) a vulnerable person complaint; (h) a victims rights complaint; Note A victims rights complaint is about the conduct of a justice agency.

(i) a conversion practice complaint; (j) a complaint on a ground mentioned in the Health Records (Privacy and Access) Act 1997, section 18; (k) a complaint about an occupancy dispute (an occupancy dispute complaint). Note 1 A complaint about a health practitioner or a veterinary practitioner is dealt with by way of commission-initiated consideration (see s 94 (2)). Note 2 The commission may also consider matters that have not been raised by complaints under div 3.5 (see s 48). (2) For a discrimination complaint, the complaint may be made in relation to unfavourable treatment— (a) on the grounds of 2 or more protected attributes under the Discrimination Act 1991; and (b) occurring on 2 or more occasions. (3) To remove any doubt, a complaint that may be made under this Act is made under this division.

43 Who may make a complaint under this Act? (1) A complaint about an act, service or conduct may be made to the commission under this Act by— (a) a person (the aggrieved person) aggrieved by the act, service or conduct; or (b) an agent of the aggrieved person; or (c) if the aggrieved person is a child or young person—a parent or guardian of the aggrieved person; or (d) if a person has guardianship or control of the affairs of the aggrieved person under another law or an order of a court or tribunal—that person; or

(e) if the aggrieved person cannot complain for any reason and no-one has guardianship or control of the aggrieved person’s affairs under another law or an order of a court or tribunal—a person approved by the commission to make a complaint for the aggrieved person; or (f) if the complaint is a discrimination complaint—a person who has a sufficient interest in the complaint; or (g) if the complaint is a health service complaint, disability service complaint or older people service complaint—anyone; or (h) if the complaint is an occupancy dispute complaint—an occupant under the occupancy agreement. Note 1 If a complaint is made under par (g) by a person who could not otherwise complain under another paragraph, the commission may conduct a commission-initiated consideration into the matters raised by the complaint (see s 48 (2)). Note 2 If a person’s victims rights concern is referred to the commission, the person is taken to have made a victims rights complaint (see s 41C). (2) For subsection (1) (a), if the complaint is a human rights complaint— an aggrieved person includes a person who would be aggrieved by the act. (3) For subsection (1) (f), a person has a sufficient interest in a complaint if the conduct complained about is a matter of a genuine concern to the person because of the way conduct of that kind adversely affects, or has the potential to adversely affect, the interests of the person or interests or welfare of anyone the person represents. (4) To remove any doubt— (a) no-one may be required to make a complaint; and (b) an aggrieved person may make a complaint under subsection (1) (a) even though the person is under a legal disability (for example, if a child is aggrieved, the child may make a complaint); and

(c) if a complaint is made under subsection (1) (g)—the complainant cannot require the complaint to be considered. (5) To remove any doubt, a carer may make a complaint as an agent of the aggrieved person under subsection (1) (b) even though the carer is under a legal disability (for example, if a child is a carer of the aggrieved person, the child may make a complaint as an agent of the person). (6) A person may act as the agent of the aggrieved person only if the person is— (a) authorised in writing to act for the aggrieved person; or (b) authorised by the commission to act for the aggrieved person. (7) A person mentioned in subsection (1) (f) may make a complaint only if the aggrieved person consents to the making of the complaint. (8) The commission may authorise a person to act as the agent of the aggrieved person only if the commission is satisfied, on reasonable grounds, that the aggrieved person cannot for any reason make a complaint or authorise a person to make a complaint for the aggrieved (9) A single complaint may be made by or for 2 or more aggrieved people.

44 Complaint to be in writing (1) A complaint must— (a) be in writing; and (b) if the complaint is made by an agent—state that it is made for an aggrieved person and name the aggrieved person; and (c) if the complaint is made by a person under section 43 (1) (f)— name the aggrieved person; and (d) state the complaint and the grounds on which it is based; and

(e) include the name and address of the complainant. (2) For a discrimination complaint, the complaint need not state whether the discrimination complained about is direct discrimination or indirect discrimination. Note Discrimination occurs when a person directly or indirectly discriminates against someone (see Discrimination Act 1991, s 8). (3) However, a person is entitled to reasonable assistance from the commission to put the complaint into writing. Examples of when assistance would be reasonable 1 if the person cannot put the complaint in writing 2 if the person has difficulty putting the complaint in writing (4) Despite subsection (1) (a), a complaint may be made orally if the commission is satisfied on reasonable grounds that exceptional circumstances justify action without a written complaint. Example—exceptional circumstances Waiting until the complaint is put in writing would make action in response to the complaint impossible or impractical.

44A Amendment of complaint A complainant may, with leave of the commission, amend a complaint at any time.

45 Commission’s obligation to be prompt and efficient (1) The commission must deal with complaints promptly and efficiently. (2) Without limiting subsection (1), the commission may make any preliminary inquiry it considers necessary and appropriate to decide how to deal with a complaint. (3) Without limiting subsection (1), in dealing with a complaint, the commission must— (a) allocate each complaint as soon as possible; and

(b) if the commission decides to consider the complaint by a commission-initiated consideration under section 48 (2)—tell the person who made the complaint, in writing, about the decision and that the person will not receive progress reports about the consideration; and (c) unless subsection (5) applies—before considering the complaint, tell the complainant and the respondent, in writing, that the complaint is to be considered; and (d) if the complaint is a discrimination complaint (other than a matter under commission-initiated consideration) and the referred for conciliation and include a discrimination referral statement with the notice; and (e) if the complaint relates to a service provided by the operator of a retirement village under the Retirement Villages Act 2012 and the commission decides not to refer the complaint for conciliation—tell the complainant, in writing, that the complaint will not be referred for conciliation and include a retirement village referral statement with the notice; and (f) if the complaint is an occupancy dispute complaint and the referred for conciliation and include an occupancy dispute referral statement; and (g) if the complaint is a conversion practice complaint and the referred for conciliation and include a conversion practice referral statement with the notice; and

(h) tell the complainant, in writing, how consideration of the complaint by the commission is progressing not later than— (i) 6 weeks after the last time the commission told the complainant, in writing, (by a progress report) about the complaint’s progress; or (ii) if the latest progress report includes a statement to the effect that, for stated reasons, a further progress report will not be provided until a stated time or event—the time or the happening of the event stated in the latest progress report; and (i) if the complaint is closed for any reason—tell the complainant and the respondent, in writing, that the complaint has been closed within 4 weeks after the day the complaint is closed. Examples—par (h) (ii) 1 A complainant tells the commission that she is going overseas for 3 months. The commission may tell the complainant that the next progress report will not be given until the complainant returns from overseas and notifies the commission.

2 The commission decides that it cannot consider a complaint further until an expert report about the complainant’s medical condition is provided. The commission may tell the complainant that the next progress report will not be given until 1 week after the commission receives the expert report. (4) The commission need not consider a complaint if satisfied that— (a) the complaint— (i) is frivolous, vexatious or not made honestly; or (ii) lacks substance; or (iii) is to be referred to another statutory officer-holder or dealt with by a national board under the Health Practitioner Regulation National Law (ACT); or (iv) cannot be made by the complainant under the Act; or

(v) cannot otherwise be made under the Act; or (b) the complainant has been given a reasonable explanation and the complaint needs no further action by the commission; or (c) the matters raised by the complaint have been, or are being, dealt with by a court or tribunal or have been dealt with by the commission; or (d) the complainant withdraws the complaint, whether in writing or otherwise, before notice of the complaint has been given to the (5) The commission need not give notice to the respondent under subsection (3) if, because of subsection (4), it decides— (a) not to consider the complaint; or (b) not to consider the complaint further. (6) Also, for a commission-initiated consideration of a vulnerable person complaint, the commission— (a) for subsection (3) (b)—may tell the person who made the complaint orally; and (b) for subsection (3) (c), if the commission decides that it is not appropriate, because of the risk to the vulnerable person, to tell either the complainant or the respondent—need not tell them.

46 Complainant’s obligations in relation to complaint The complainant for a complaint must— (a) keep the commission informed of any change in the complainant’s name or address while the commission is dealing with the complaint; and

(b) if the commission requires the complainant under section 73 to provide further information, or produce any document or thing—provide the further information, or produce the document or thing, as required; and (c) if the commission requires the complainant under section 74 to attend before a person to answer questions—attend before the person, and answer questions, as required. Note 1 A complaint may be closed if the complainant does not comply with a requirement under s 73 or s 74 (see s 78 (1) (c)). Note 2 If the commission requires a person other than the complainant or aggrieved person (eg the respondent) to provide information, produce a document or thing or attend to answer questions, the person commits an offence if the person does not comply with the requirement (see s 73 and s 74).

Note to div 4.2 The commission must close certain complaints. For example, the commission must close a complaint that is frivolous or vexatious, or a complaint that has been or is being dealt with by a court or tribunal (see s 78 (2), esp par (c) (ii) and (iii)).

47 Outline—div 4.2 (1) This division sets out how the commission deals with the complaints it receives. (2) In summary, complaints may, but need not, go through the following steps: (a) allocation; (b) consideration; (c) conciliation; (d) closure; (e) reporting. (3) Complaints need not go through the steps mentioned in subsection (2) in the order they appear in that subsection. (4) Also, a complaint may be referred to another entity under section 52A (Referral to appropriate statutory office-holder). Note If the health services commissioner receives a complaint about a health practitioner, the commissioner must tell the national board for the practitioner’s health profession about the complaint. The national board and commissioner must try to reach agreement about how the complaint is to be dealt with (see Health Practitioner Regulation National Law (ACT), s 150).

48 Consideration without complaint or appropriate complainant (1) The commission may, on its own initiative, consider (by a commission-initiated consideration)— (a) an act, service or conduct that appears to the commission to be an act, service or conduct about which a person could make, but has not made, a complaint under this Act; or (b) any other matter related to the commission’s functions. Examples The commission may consider an issue of public interest or public safety that relates to its functions. Note 1 A complaint about a health practitioner or a veterinary practitioner may also be dealt with by commission-initiated consideration (see s 94 (2)). Note 2 The commission— (a) must consult with the custodial inspector in relation to any commission-initiated consideration involving a detainee or correctional centre or service (see Custodial Inspector Act 2017, s 33); and (b) may refer a matter to the inspector if the commission reasonably believes the matter can be more appropriately dealt with by the inspector (see Custodial Inspector Act 2017, s 34). (2) The commission may, on its own initiative, also consider (by a commission-initiated consideration) a complaint that is a children and young people service complaint, disability service complaint, health service complaint, older people service complaint, victims rights complaint or vulnerable person complaint, if— (a) the person who made the complaint could not have made the complaint under section 43 (1) (a) to (d); and

(b) the commission does not approve the person under section 43 (1) (e) to make the complaint for the aggrieved person. Note Under s 43 (1) (a) to (e), complaints may be made by an aggrieved person, an agent of an aggrieved person, a parent or guardian of an aggrieved person who is a child or young person, a person with guardianship or control of an aggrieved person or a person approved by the commission to make the complaint on an aggrieved person’s behalf. (3) Without limiting when the commission may consider a matter by a commission-initiated consideration, the commission may consider a complaint by a commission-initiated consideration if— (a) the complainant has withdrawn the complaint for any reason; but (b) the commission is satisfied that it is in the public interest to consider the complaint. Examples of when it may be in the public interest to consider withdrawn complaint 1 The complaint appears to reveal a systemic problem about an activity or a service. 2 The complaint, if substantiated, raises a significant issue for the ACT, or an issue of public safety. 3 It may be possible for action in relation to the complaint to be taken under another Act if the complaint is substantiated by, for example, reporting a veterinary practitioner to the veterinary practitioners board or making an application for an occupational discipline order in relation to the veterinary practitioner to the ACAT. (4) A commission-initiated consideration must, as far as practicable, be conducted as if it were a consideration of a complaint. Note The commission is the complainant for a commission-initiated consideration (see dict, def complainant).

49 Treatment of complaint if complaint dealt with as commission-initiated consideration (1) This section applies if the commission decides to consider a complaint by commission-initiated consideration under section 48 (2). (2) The person who made the complaint stops being the complainant and the commission becomes the complainant. (3) However, the commission continues to have the same obligations under section 45 (3) (i) in relation to the person as the commission would have if the person were the complainant, but must not give the person information about the aggrieved person or the respondent. Note Under s 80 (3) the commission need not give the person a final report in relation to the complaint.

51 Referring complaints for conciliation (1) The commission may, at any time, conciliate a complaint, or matter that forms part of a complaint, if satisfied that the complaint or matter is appropriate for conciliation. Note Conciliation is dealt with in div 4.3. (2) The commission may continue to consider a complaint that has been referred, or part of which has been referred, for conciliation.

51A Referral of advocacy matters—children and young people (1) This section applies to a children and young people service complaint if— (a) the complaint relates to a child or young person; and (b) the director-general under the Children and Young People Act 2008 has parental responsibility for the child or young

(2) The disability and community services commissioner may, at any time, refer the complaint, or a matter that forms part of the complaint, to the public advocate or the Aboriginal and Torres Strait Islander children and young people commissioner for advocacy if satisfied that— (a) it is in the best interests of the child or young person that the complaint or matter be referred for advocacy; and (b) the complaint or matter is appropriate for advocacy by the public advocate or the Aboriginal and Torres Strait Islander children and young people commissioner; and (c) for a complaint or matter referred to the Aboriginal and Torres Strait Islander children and young people commissioner—the complaint or matter relates to an Aboriginal or Torres Strait Islander child or young person. (3) The disability and community services commissioner may continue to consider a complaint that has been referred, or part of which has been referred, for advocacy.

51B Referral of advocacy matters—vulnerable people (1) The disability and community services commissioner may, at any time, refer a vulnerable person complaint, or a matter that forms part of the complaint, to the public advocate for advocacy if satisfied it is appropriate. (2) The disability and community services commissioner may continue to consider a complaint that has been referred, or part of which has been referred, for advocacy.

52 Considering complaints (1) The commissioner given responsibility for considering a complaint for the commission must consider the complaint. Note 1 Responsibility for considering complaints may be in accordance with the operations protocol made under s 18C. Note 2 If the president considers that a commissioner has a real or perceived conflict of interest in relation to a complaint, the president may consider the complaint or allocate responsibility for considering the complaint to another commissioner (see s 18 (1) (m)). (2) The commissioner may, but need not, continue to consider the complaint while the complaint is being conciliated. (3) In considering a discrimination complaint, the commissioner may also consider whether the duty under the Discrimination Act 1991, section 75 has been met. Note The commission may ask for information or documents relevant to a consideration under this subsection (see s 73).

52A Referral to appropriate statutory office-holder (a) the commission considers that the act, service or conduct to which a complaint relates is a matter that could— (i) have been complained about to a statutory office-holder; and (ii) be dealt with more conveniently or effectively by the statutory office-holder; and (b) the commission considers it would be appropriate for the complaint to be referred to the statutory office-holder; and (c) the commission has consulted the statutory office-holder about the referral.

(2) The commission may— (a) decide not to deal with, or further deal with, the complaint; and (b) if paragraph (a) applies—must refer the complaint, together with any relevant documents or information in its possession or control, to the statutory office-holder. statutory office-holder means an office established under a territory law (other than this Act) or a law of the Commonwealth, a State or another Territory. (4) To remove any doubt, this section is in addition to, and does not limit, section 51A (Referral of advocacy matters—children and young people) or section 51B (Referral of advocacy matters—vulnerable people).

52B Dealing with vulnerable person complaints (1) Before taking either of the following actions in relation to a vulnerable person complaint, the commission must obtain the consent of the vulnerable person the subject of the complaint: (a) telling the respondent, in writing, that the complaint is to be considered under section 45 (3) (c); (b) referring a complaint to a statutory office-holder under section 52A. (2) However, consent is not required— (a) if the person is not capable of giving consent, even with appropriate support; or (b) if it is not appropriate to obtain consent because of the seriousness of the complaint or the risk of harm to the vulnerable person; or

(c) if the person is not capable of giving free or voluntary consent; or (d) if the commission cannot access the person to seek their consent.

52C Effect of declaration made under Children and Young People Act 2008 If a court makes a conflict declaration under the Children and Young People Act 2008, section 727AA in relation to a discrimination complaint, the commission must suspend dealing with the complaint until either of the following happen: (a) the court revokes the declaration; (b) the court proceeding in relation to which the declaration is made is finalised.

53 Definitions—div 4.2A commission-initiated discrimination matter means a matter or complaint under commission-initiated consideration that involves an (a) means a discrimination complaint; and (b) includes a commission-initiated discrimination matter. unlawful act means an unlawful act under the Discrimination Act 1991.

53A Referral of discrimination complaints other than commission-initiated discrimination matters (i) a complainant is given a discrimination referral statement under section 45 (3) (d); or (ii) a statement under section 82 (1) is included in a final report in relation to a complaint; and (b) within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT. (b) tell the complainant and the respondent in writing about the complaint does not include a commission-initiated discrimination matter.

53B Late application in exceptional circumstances section 45 (3) (d) or section 82 (1); and

complaint does not include a commission-initiated discrimination matter. 53BA Referral of commission-initiated discrimination matters section 84 for a commission-initiated discrimination matter. (2) The commission may refer a commission-initiated discrimination matter to the ACAT within 60 days after the report has been prepared. (3) If the commission refers a commission-initiated discrimination matter to the ACAT, the commission must give written notice of the referral to the respondent.

53C Parties to ACAT proceeding on discrimination complaint The parties to a complaint referred to the ACAT under this division are— (a) the complainant; and (b) the respondent; and Note The commission is the complainant in relation to a commission-initiated consideration (see dict, def complainant).

53CA Onus of establishing complaint about discrimination etc (1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by— (a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or (b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination). (2) It is a rebuttable presumption that discrimination has occurred if the complainant— (a) establishes that— (i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and (ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and (b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation— (i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or (ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.

(3) The presumption under subsection (2) is rebutted if the respondent establishes that— (a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or (b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person. Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70). protected attribute means a protected attribute under the Discrimination Act 1991.

53D Reliance on exceptions and exemptions In considering whether an act is an unlawful act, the ACAT need not consider any exception in the Discrimination Act 1991, part 4 or exemption in the Discrimination Act 1991, part 10, unless the ACAT has information suggesting the exception or exemption applies to the act. 53DA Commission to give information etc to ACAT

53DB Consideration of positive duty In considering a discrimination complaint, the ACAT may also consider whether the duty under the Discrimination Act 1991, section 75 has been met.

53E Kinds of orders—unlawful acts under the Discrimination Act (b) the ACAT is satisfied that the respondent engaged in an (2) The ACAT must make 1 or more of the following orders: (a) that the respondent not repeat or continue the unlawful act; (b) that the respondent perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act; (c) unless the complaint has been dealt with as a representative complaint—that the respondent pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act. (3) In making an order under subsection (2) (c), the ACAT must consider— (a) the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and (b) the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and

(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and (d) the nature of the discrimination; and (e) any mitigating factors. Examples—par (b)—impact of discrimination distress, humiliation, loss of self-esteem, loss of enjoyment of life Example—par (c)—other human rights freedom of expression Examples—par (d) serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991 Examples—par (e) a public apology, systemic changes to protect against further discrimination (4) The commission may, with the ACAT’s consent, intervene in a complaint to make submissions about an order under subsection (2) (c). representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71. 53EA Effect of declaration made under Children and Young People Act 2008 If a court makes a conflict declaration under the Children and Young People Act 2008, section 727AA in relation to a discrimination complaint, the ACAT must suspend dealing with the complaint until either of the following happen: (a) the court revokes the declaration;

Certain older people service complaints to ACAT Division 4.2B (b) the court proceeding in relation to which the declaration is made is finalised.

Division 4.2B Certain older people service complaints to ACAT

53G Application—div 4.2B This division applies to an older people service complaint that relates to a service provided by the operator of a retirement village under the Retirement Villages Act 2012 (a retirement village complaint).

53H Retirement village complaints—referral (i) a complainant is given a retirement village referral statement under section 45 (3) (e) (Commission’s obligation to be prompt and efficient); or (ii) a statement under section 82A (1) (Closing retirement village complaints) is included in a final report in relation to a complaint; and (b) within 60 days after the day the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

53I Retirement village complaints—late application in section 45 (3) (e) (Commission’s obligation to be prompt and efficient) or section 82A (1) (Closing retirement village complaints); and 53IA Referral of commission-initiated (retirement villages) section 84 for a commission-initiated (retirement villages) (2) The commission may refer a commission-initiated (retirement villages) matter to the ACAT within 60 days after the report has been (3) If the commission refers a commission-initiated (retirement villages)

Certain older people service complaints to ACAT Division 4.2B commission-initiated (retirement villages) consideration means a commission-initiated consideration that relates to a service provided by the operator of a retirement village under the Retirement Villages Act 2012. commission initiated (retirement villages) matter means a matter or complaint under commission-initiated (retirement villages) consideration that involves an act that is unlawful under the Retirement Villages Act 2012.

53J Retirement village complaints—parties to ACAT

53K Retirement village complaints—ACAT jurisdiction The ACAT has the same jurisdiction in relation to a retirement village complaint referred to the ACAT under this division as that provided for in the Retirement Villages Act 2012, section 177 (ACAT jurisdiction).

53L Retirement village complaints—commission to give

53M Retirement village complaints—ACAT orders (b) the ACAT is satisfied that the respondent engaged in an (2) The ACAT may make 1 or more of the orders mentioned in the Retirement Villages Act 2012, section 181 (ACAT orders).

53N Retirement village complaints—no monetary limit on The ACAT is not, in exercising the jurisdiction conferred on it by this division, limited in the amount of money that it may order to be paid.

Occupancy dispute complaints to ACAT Division 4.2C

53O Retirement village complaints—other options for dispute resolution Nothing in this division requires a complainant to attempt to resolve a complaint under the Retirement Villages Act 2012 before making a complaint under this Act. Division 4.2C Occupancy dispute complaints to ACAT 53Q Application—div 4.2C This division applies to an occupancy dispute complaint. 53R Occupancy dispute complaints—referral (i) a complainant is given an occupancy dispute referral statement under section 45 (3) (f) (Commission’s obligation to be prompt and efficient); or (ii) a statement under section 82B (1) (Closing occupancy dispute complaints) is included in a final report in relation to a complaint; and (b) within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

53S Occupancy dispute complaints—late application in section 45 (3) (f) (Commission’s obligation to be prompt and efficient) or section 82B (1) (Closing occupancy dispute complaints); and complaint to the ACAT within 60 days after the statement is given to the complainant. 53SA Referral of commission-initiated (occupancy dispute) section 84 for a commission-initiated (occupancy dispute) (2) The commission may refer a commission-initiated (occupancy dispute) matter to the ACAT within 60 days after the report has been (3) If the commission refers a commission-initiated (occupancy dispute)

Occupancy dispute complaints to ACAT Division 4.2C commission-initiated (occupancy dispute) consideration means a commission-initiated consideration that relates to an occupancy dispute. commission initiated (occupancy dispute) matter means a matter or complaint under commission-initiated (occupancy dispute) consideration that involves an act that is unlawful under the Residential Tenancies Act 1997.

53T Occupancy dispute complaints—parties to ACAT

53U Occupancy dispute complaints—ACAT jurisdiction (1) The ACAT has the same jurisdiction in relation to an occupancy dispute complaint referred to the ACAT under this division as that provided for in the Residential Tenancies Act 1997, section 76 (Jurisdiction of ACAT under this Act etc). (2) To remove any doubt, the Residential Tenancies Act 1997, section 73 (2) does not require a party to an occupancy agreement to attempt to resolve a dispute under a university dispute resolution procedure before the ACAT deals with a complaint referred to it under this division.

university dispute resolution procedure—see the Residential Tenancies Act 1997, section 73 (3).

53V Occupancy dispute complaints—commission to give

53W Occupancy dispute complaints—ACAT orders If the commission refers a complaint to the ACAT under this division, the ACAT may make 1 or more of the orders mentioned in the Residential Tenancies Act 1997, section 83 (Orders by ACAT).

53X Occupancy dispute complaints—monetary limit on The ACAT is, in exercising the jurisdiction conferred on it by this division, limited in the amount of money that it may order to be paid by the Residential Tenancies Act 1997, section 76 (Jurisdiction of ACAT under this Act etc).

Conversion practice complaints to ACAT Division 4.2D

53Y Occupancy dispute complaints—other options for dispute resolution Nothing in this division requires a complainant to attempt to resolve a complaint under the Residential Tenancies Act 1997 before making a complaint under this Act. Division 4.2D Conversion practice complaints to ACAT 53ZA Conversion practice complaints—referral (i) a complainant is given a conversion practice referral statement under section 45 (3) (g); or (ii) a statement under section 82C (1) is included in a final report in relation to a complaint; and (b) within 60 days after the day the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

53ZB Conversion practice complaints—late application in (a) a complainant has been given a statement under section 45 (3) (g) or section 82C (1); and 53ZBA Referral of commission-initiated (conversion practice) section 84 for a commission-initiated (conversion practice) (2) The commission may refer a commission-initiated (conversion practice) matter to the ACAT within 60 days after the report has been (3) If the commission refers a commission-initiated (conversion practice)

Conversion practice complaints to ACAT Division 4.2D commission-initiated (conversion practice) consideration means a commission-initiated consideration that relates to a sexuality or gender identity conversion practice. commission initiated (conversion practice) matter means a matter or complaint under commission-initiated (conversion practice) consideration that involves an act that is unlawful under the Sexuality and Gender Identity Conversion Practices Act 2020. 53ZC Conversion practice complaints—parties to ACAT 53ZD Conversion practice complaints—commission to give

53ZE Conversion practice complaints—ACAT orders (b) the ACAT is satisfied that the respondent engaged in a harmful practice. (2) The ACAT may make 1 or more of the following orders: (a) that the respondent not repeat or continue the harmful practice; (b) that the respondent perform a stated reasonable act to redress any loss or damage suffered by a person because of the harmful practice; (c) unless the complaint has been dealt with as a representative complaint—that the respondent pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the harmful practice; (d) any other order the ACAT considers appropriate. (3) In making an order under subsection (2) (c), the ACAT— (a) must consider— (i) the inherent dignity of all people and the impact of the sexuality or gender identity conversion practice on the person’s dignity; and (ii) the nature of the sexuality or gender identity conversion practice; and (iii) any mitigating factors; and

(b) may consider any other matter the ACAT considers relevant. Examples—par (a) (i)—impact of sexuality or gender identity conversion practice distress, humiliation, loss of self-esteem, loss of enjoyment of life Example—par (a) (iii) a public apology harmful practice means a sexuality or gender identity conversion practice that caused, or is likely to cause, harm to a person or otherwise has adversely affected, or is likely to adversely affect, a person’s rights, interests or welfare. representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71. 53ZF Conversion practice complaints—no monetary limit on The ACAT is not, in exercising the jurisdiction conferred on it by this division, limited in the amount of money that it may order to be paid.

54 Outline—div 4.3 This division sets out the process to help a complainant and the respondent to endeavour to reach agreement on some or all of the matters complained about in a complaint.

55 What is conciliation? (1) For this Act, conciliation of a complaint involves the commission acting as an impartial third party to help the parties to the conciliation to endeavour to resolve the matters raised by the complaint.

(2) Conciliation requires the parties’ willing and informed agreement to take part in the conciliation. Note The commission may require a party to attend conciliation, but may not require the party to take part. (3) The parties to conciliation decide the outcome of the conciliation, usually with advice from the commission.

56 Delegation of commission’s function of conciliation The commission may delegate the function of conciliation of a complaint to— (a) a commissioner other than the commissioner who is considering the complaint; or (b) a member of staff or a consultant engaged by the commission for this Act. Note 1 Consultants may be engaged for this Act under s 37. Note 2 For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

57 Parties to conciliation (1) The parties to the conciliation are the complainant and the respondent. (2) The commission may allow other people to attend the conciliation if the commission considers that their attendance will help the conciliation. (3) However, neither the complainant nor the respondent may be represented by anyone else in the conciliation unless the commission is satisfied that the representation is likely to help the conciliation substantially.

58 Request for third party to attend The commission may, in writing, ask a person other than a party to attend the conciliation if satisfied that the person’s attendance is likely to help the conciliation.

59 Compulsory attendance at conciliation (1) The commission may, in writing, require a party to attend the conciliation. (2) The requirement to attend must state the time and place that the person is required to attend. Note For the entitlement to representation at conciliation, see s 57 (3). (3) A person commits an offence if— (a) the person is required to attend a conciliation; and (b) the person does not attend as required. (4) Subsection (3) does not apply— (b) if the person has a reasonable excuse for not attending the conciliation as required.

60 Conduct of conciliation Conciliation is to be conducted in the way the commission decides. The commission may decide that a complaint is to be split and the parts are to be conciliated separately.

62 Conciliated agreements (1) If a complaint is resolved by conciliation, the commission may help the parties make a written record (the conciliation agreement) of the agreement they have reached. (2) If a conciliation agreement is made, each party must sign the agreement. (3) The commission must— (a) give each party a copy of the conciliation agreement; and (b) if the complaint is a discrimination complaint, occupancy dispute complaint, retirement village complaint or a conversion practice complaint—give the agreement to the ACAT. Note The ACAT may make an order in accordance with a conciliation agreement for a complaint (see ACT Civil and Administrative Tribunal Act 2008, s 55A).

63 Use of conciliation agreement by commission (1) This section applies if the parties to the conciliation make a conciliation agreement. (2) The commission may use information in the conciliation agreement, whether for considering the complaint to which the agreement relates or otherwise, only if the parties agree to the use by the commission of the agreement or the part of the agreement containing the information. (3) An agreement to allow the commission to use a conciliation agreement, or part of a conciliation agreement, may be in the conciliation agreement or elsewhere. (4) If the parties agree to the use by the commission of the conciliation agreement, or a part of the agreement, the commission may use anything in the conciliation agreement, or the part of the agreement, as the commission considers appropriate.

65 End of conciliation (1) Conciliation of a complaint ends if— (a) agreement is reached on the matters raised by the complaint and the parties end the conciliation; or (b) the parties agree to end the conciliation; or (c) a party withdraws from the conciliation; or (d) the commission is satisfied that the conciliation is unlikely to be successful. (2) If the conciliation ends, the commission must, as soon as practicable, tell the following people that the conciliation has ended and why it has ended: (b) the respondent.

66 Admissibility of evidence (1) This section— (a) applies to— (i) a communication made between people attending a conciliation (including the commission); and (ii) a document (whether delivered or not) that has been prepared in relation to the conciliation; but (b) does not apply to a conciliation agreement, or part of a conciliation agreement, if the parties have agreed under section 63 to allow the commission to use the agreement or part. (2) The Evidence Act 2011, section 131 (Exclusion of evidence of settlement negotiations) applies to a communication or document to which this section applies as if the communication or document were a communication or document mentioned in that Act, section 131 (1).

67 Conciliation attendees protected from civil liability A person attending conciliation does not incur civil liability for an act done honestly and without recklessness at the conciliation.

68 Outline—div 4.4 This division sets out the process the commission follows, and the powers the commission may exercise, in considering a complaint.

69 Purpose of considering complaints A consideration of a complaint has the following main purposes: (a) to allow the commission to decide whether the complaint is a complaint that may be made under this Act and whether the complainant is a person who may make the complaint under this Act; (b) to provide information that may be used to help conciliation of the complaint; (c) to work out whether the conduct complained about was engaged in in the way complained about and, however it was engaged in, whether there is an adequate ground for the commission to report; (d) for a health service complaint about a health care worker acting inconsistently with the code of conduct—whether action should be taken against the worker under division 5.3 (Health care worker code of conduct).

70 Single consideration of several complaints The commission may conduct a single consideration in relation to 2 or more complaints that arise out of the same or substantially the same circumstances or subject matter.

71 Representative complaints The commission may deal with a complaint as a representative complaint if the commission believes, on reasonable grounds, that— (a) the complainant is a member of a class of people the members of which have, or are reasonably likely to have, complaints against a single person or group; and (b) the material facts of the complainant’s complaint are the same as, or similar or related to, the material facts of the complaints of other members of the class; and (c) common questions of law or fact arise, or would arise, in the consideration of complaints that have been, or could be, made by other members of the class in relation to the complaints; and (d) it is desirable to deal with the complaint as a representative

71A Commission may treat new entity as respondent (1) This section applies if the commission is considering a complaint, and is satisfied on reasonable grounds that— (a) the complaint should have been made against an entity (the new entity) other than the respondent; or (b) the complaint could have been made by the complainant against an entity (also the new entity) as well as the respondent. (2) The commission may, by written notice given to the complainant and the new entity, elect to treat the new entity as a respondent in the (3) If the commission elects to treat the new entity as a respondent in the (a) the new entity is taken to be a respondent in the complaint for this Act and related Acts; and

(b) the complaint is taken to have been made against the new entity at the time the commission elected to treat the new entity as a (4) Also, the commission must take reasonably practicable steps to ensure that the new entity is not disadvantaged only because the commission elected to treat the entity as a respondent in the complaint rather than waiting for a new complaint to be made about the entity.

72 Conduct of consideration A consideration in relation to a complaint must be conducted in the way the commission decides, unless otherwise expressly provided by The commission may decide that a complaint is to be split and the parts are to be considered separately.

73 Power to ask for information, documents and other things (1) This section applies if the commission believes, on reasonable grounds, that a person can provide information or produce a document or something else relevant to a consideration in relation to a complaint. (2) The commission may, by written notice given to the person, require the person to provide the information or produce the document or other thing. (3) The notice must state how, and the time within which, the person must comply with the requirement. (4) A person commits an offence if— (a) the person is required by a notice under this section to provide information to the commission for a consideration in relation to a complaint; and

(c) the person fails to provide the information to the commission as required. Note 1 See s 75 for when a person required by a notice under this section to provide information or produce a document or other thing cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty. Note 2 If the commission requires a complainant to provide information or produce a document or other thing and the complainant does not comply with the requirement, the commission may close the complaint (see s 78 (1) (c)). Note 3 Giving false information is an offence against the Criminal Code, s 338. (5) Subsection (4) does not apply— (b) if the person has a reasonable excuse for failing to provide the information to the commission as required. (6) A person commits an offence if— (a) the person is required by a notice under this section to produce to the commission a document or other thing for a consideration in relation to a complaint; and (c) the person fails to produce the document or other thing to the commission as required.

(7) Subsection (6) does not apply— (b) if the person has a reasonable excuse for failing to produce the document or other thing to the commission as required.

74 Requiring attendance etc (1) If the commission believes, on reasonable grounds, that someone can provide information relevant to a consideration in relation to a complaint, the commission may, by written notice given to the person, require the person to attend before a named person (an interviewer), at the reasonable time and place stated in the notice, to answer questions relevant to the consideration. Note For how documents may be served, see the Legislation Act, pt 19.5. (2) A person who attends before an interviewer under a notice under subsection (1) must continue to attend as reasonably required by the interviewer to answer questions relevant to the consideration. (3) A person commits an offence if— (c) the person does not attend before the interviewer as required. (4) Subsection (3) does not apply—

(b) if the person has a reasonable excuse for not attending before the interviewer as required. (5) A person commits an offence if— (c) the person attends before the interviewer as required; and (d) the person fails to continue to attend as reasonably required by the interviewer to answer questions relevant to the (6) Subsection (5) does not apply— (b) if the person has a reasonable excuse for failing to continue to attend as required by the interviewer. (7) A person commits an offence if— (b) the person attends before the interviewer as required; and (c) the interviewer requires the person to answer a question; and

(d) the person fails to answer the question. Note 1 See s 75 for when a person required by a notice under s (1) to attend before an interviewer to answer questions cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty. Note 2 Giving false information is an offence against the Criminal Code, s 338. (8) Subsection (7) does not apply— (b) if the person has a reasonable excuse for failing to answer the question.

75 Privileges against self-incrimination and exposure to civil penalty (1) This section applies if a person is required by a notice under section 73 to provide information or produce a document or other thing. (2) This section also applies if— (a) a person is attending before an interviewer in accordance with a requirement under section 74; and (b) the interviewer requires the person to answer a question. (3) However, this section does not apply to a person mentioned in subsection (1) or (2) if the information, document or other thing to be produced, or question asked, relates to a consideration of a complaint under division 5.3 (Health care worker code of conduct). (4) The person cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty to refuse to provide the information, produce the document or other thing or answer the question. Note The Legislation Act, s 171 deals with client legal privilege.

(5) However, any information, document or other thing obtained, directly or indirectly, because of providing the information, the producing of the document or other thing, or the answering of the question is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for— (a) an offence against this part; or (b) any other offence in relation to the falsity of the information, document, other thing or answer.

76 Commission may keep document or other thing etc (1) If a document or something else is produced in accordance with a requirement under section 73 (Power to ask for information, documents and other things), the commission— (a) may take possession of, make copies of, or take extracts from, the document or may take possession of the other thing; and (b) may keep the document or other thing for the period that is necessary for the consideration to which the document or thing relates; and (c) during that period, must allow anyone who would be entitled to inspect the document or other thing, if it were not in the possession of the commission, to inspect it and, for a document, make copies of, or take extracts from, it. (2) The commission must return a document or something else produced in accordance with a requirement under section 73 if the commission is no longer entitled to keep the document or thing under this section.

77 Outline—div 4.5 (1) This division sets out when a complaint can be closed and how it is closed, including the making of closing and other reports.

(2) This division also sets out what a report can contain, the people to whom it may be provided and what happens after a report is made.

78 When complaints can be closed (1) The commission may close a complaint at any time if— (a) more than 2 years have elapsed since the circumstances that gave rise to the complaint happened; or (b) the complainant has, without good reason, failed to take reasonable steps to resolve the complaint; or (c) the complainant has failed to comply with a requirement under section 73 (Power to ask for information, documents and other things) or section 74 (Requiring attendance etc); or (d) the complainant tells the commission that the complainant wishes to withdraw the complaint, whether or not because it has been conciliated to the complainant’s satisfaction; or (e) the complaint has been referred to a national board under the Health Practitioner Regulation National Law (ACT) or to the veterinary practitioners board; or (f) the commission considers that conciliation is unlikely to succeed; or (g) the matters raised by the complaint have been successfully conciliated; or (h) the commission is satisfied, taking into account all the circumstances, that further consideration of the complaint is not justified. (2) The commission must close a complaint made to it if— (a) the complaint is not a complaint that may be made under this Act; or Note For complaints that may be made under this Act, see s 42.

(b) the complaint is not made by a person who may make a complaint under this Act; or Note For people who may make a complaint under this Act, see s 43. (c) satisfied that— (i) the complainant has been given a reasonable explanation and the complaint needs no further action by the commission; or (ii) the complaint is frivolous, vexatious or not made honestly; or (iii) the matters raised by the complaint have been, or are being, dealt with by a court or tribunal or have been dealt with by the commission; or (iv) the complaint lacks substance; or Example of complaint lacking substance The complaint is about discrimination, but the discrimination is not an unlawful act under the Discrimination Act 1991. (d) the complaint is a discrimination complaint, occupancy dispute complaint, retirement village complaint or a conversion practice complaint that has been referred to the ACAT; or (e) the complaint has been dealt with to the commission’s (f) the complaint has been referred under section 52A (Referral to appropriate statutory office-holder); or (g) the complaint has otherwise been resolved.

79 Reopening complaints (1) The commission may, but need not, reopen a complaint if— (a) the complaint was closed under section 78 (1) (c) because the complainant had not complied with a requirement mentioned in the paragraph; and (b) the complainant complies with the requirement. (2) If the requirement was a requirement to do something by a stated time, the requirement is taken to have been complied with for subsection (1) even though the complainant did not do it within the required time. (3) The commission may, but need not, reopen a complaint if the commission considers that it would be reasonable to do so— (a) because of new information received about the complaint; or (b) because of exceptional circumstances. Example—exceptional circumstances It appears to the commission that the original investigation was defective in some way.

80 How complaints are closed (1) The commission closes a complaint by giving a written report (the final report) to— (a) the complainant; and (b) the respondent; and (c) if the complaint was referred to the commission by— (i) a national board established under the Health Practitioner Regulation National Law (ACT), section 31—the national board; or

(ii) the veterinary practitioners board—the board. Note 1 If the complaint is dealt with by commission-initiated consideration, the commission cannot give the complainant information about the aggrieved person (see s 49). Note 2 For how documents may be served, see the Legislation Act, pt 19.5. (2) However, the commission must not include an adverse comment in relation to a person in the final report unless the commission has given the person a reasonable opportunity to respond to the proposed comment. (3) The commission need not give a final report to close a commission-initiated consideration.

81 Final report (1) If the commission is satisfied the respondent has acted inconsistently with an applicable standard, the commission may make recommendations to the respondent in the final report. (2) A recommendation in a final report need not be limited to matters raised by the complaint being closed. (3) If a recommendation recommends that action be taken, it must state Note For final reports in relation to human rights complaints that are closed because the commission considers that conciliation is unlikely to succeed in resolving the complaint—see s 82D.

82 Closing discrimination complaints (1) The final report in relation to a discrimination complaint must include a discrimination referral statement. Note Discrimination referral statement—see s 88.

82A Closing retirement village complaints (1) The final report in relation to a retirement village complaint must include a retirement village referral statement. Note Retirement village referral statement—see s 88A.

82B Closing occupancy dispute complaints (1) The final report in relation to an occupancy dispute complaint must include an occupancy dispute referral statement. Note Occupancy dispute referral statement—see s 88B.

82C Closing conversion practice complaints (1) The final report in relation to a conversion practice complaint must include a conversion practice referral statement. Note Conversion practice referral statement—see s 88C.

82D Closing human rights complaints if conciliation unlikely to succeed (1) This section applies if the commission closes a human rights complaint because section 78 (1) (f) applies. (2) The final report in relation to the human rights complaint may— (a) include the substance of the complaint; and (b) include the actions taken to try to resolve the complaint; and (c) recommend any action the commission considers the respondent should take to ensure their acts and decisions are compatible with human rights. (3) A recommendation need not be limited to matters raised by the complaint being closed. (4) If a recommendation recommends that action be taken, it must state (5) The final report is not admissible in a proceeding under the Human Rights Act 2004, section 40C (Legal proceedings in relation to public authority actions) unless the complainant and the respondent agree. (6) This section is additional to the other requirements of this Act for a

83 Third-party reports (1) The commission may give a third party a report (a third-party report) other than a final report if, in considering a complaint, the commission is satisfied— (a) that— (i) the third party has acted inconsistently with an applicable standard that applies to the third party, or is otherwise failing to adequately do something the third party is required to do; or Note Applicable standard—see the dictionary. (ii) the report is about matters of public policy; or (iii) the report is about matters that the third party has an appropriate interest in; and (b) that it is in the public interest to give the report. Examples—people to whom third-party report may be given 1 a Minister 2 a non-government provider 3 the employer of the respondent 4 the veterinary practitioners board 5 a hospital or other institution where services are provided by the respondent 6 a funding body Examples—what third-party report may be about 1 systemic issues 2 issues of public interest 3 issues relating to safety (2) A third-party report need not be limited to matters raised by the

(3) A third-party report given by the commission in considering a human rights complaint may recommend any action the commission considers the third party should take to ensure their acts and decisions are compatible with human rights. (4) If a third-party report recommends that action be taken, it must state (5) However, the commission must not include an adverse comment in relation to a person in a third-party report unless the commission has given the person a reasonable opportunity to respond to the proposed comment. (6) To remove any doubt, a third-party report may be made after a final report has been made, whether or not the respondent has complied with any recommendation made to them. (7) In this section: third-party means an entity other than the complainant or the

84 Commission-initiated reports (1) The commission may prepare a report (a commission-initiated report) of a commission-initiated consideration and give it to anyone the commission considers appropriate. The commission gives a report about a vulnerable person complaint to the ACAT because it involves matters relevant to the ACAT’s power to, on its own initiative— (a) hold a hearing to consider the appointment of a guardian or manager (see Guardianship and Management of Property Act 1991, s 19); or (b) make an order about an enduring power of attorney (see that Act, s 62). (2) However, the commission must not include an adverse comment in relation to a person in a commission-initiated report unless the commission has given the person a reasonable opportunity to respond to the proposed comment.

85 Responding to recommendations (1) An entity commits an offence if— (a) a final report, a third-party report or commission-initiated report recommends that an entity take action within a stated time; and (b) the entity has been given a copy of the report; and (c) the entity fails to tell the commission in writing about the action the entity has taken in relation to the recommendation within 45 days after the later of the following: (i) the end of the stated time or any further period allowed by the commission; (ii) 3 weeks after the day the entity is given the report. (2) However, subsection (1) does not apply to an entity that is a justice agency if the report is in relation to a victims rights complaint. (3) An offence against this section is a strict liability offence. (4) The commission may extend, by no longer than 15 days, the period of 45 days mentioned in subsection (1) if, before the end of the period, the entity asks the commission in writing to extend the period. Note If the entity has not complied with the recommendation, the commission may be able to make a third-party report or publish the entity’s name etc under s 86. commission-initiated report—see section 84 (1).

86 Publication of name and details of non-complying entity (1) For this section, an entity is a non-complying entity if— (a) a final report or third-party report recommends that the entity do something within, or stop doing something by, a stated time; and

(b) the entity has been given a copy of the report; and (c) the entity has not done the thing, or stopped doing the thing, by the end of the time. (2) An entity is also a non-complying entity if— (a) the commission has required the entity under this Act to provide information, produce a document or thing or attend to answer questions; and (b) the entity has not complied with the requirement. (3) The commission may do either or both of the following in relation to the non-complying entity’s name and details of the entity’s failure mentioned in subsection (1) or (2): (a) publish them; (b) report them to the Minister. Examples of where name and details may be published for par (a) 1 on the commission website 2 in a newspaper 3 in the commission’s annual report (4) However, the commission must not publish or report under subsection (3) unless— (a) the commission has given the entity a written notice that— (i) gives details of the entity’s failure to which the notice relates; and (ii) explains that the commission proposes to publish under subsection (3) the entity’s name and details of the entity’s failure; and (iii) invites submissions about the proposed publication within the time stated in the notice (not less than 2 weeks after the day the entity is given the notice); and (b) the time stated in the notice has ended; and

(c) the commission has considered any submission made by the entity within the time and is satisfied that it is in the public interest to publish the entity’s name and details of the entity’s failure. (5) To remove any doubt, if the commission reports to the Minister under subsection (3), the Minister may, but need not, present the report to the Legislative Assembly.

86A Publication of information in relation to human rights complaints (1) The commission may publish information about a human rights complaint that the commission has closed. (2) The publication— (a) may include the substance of the complaint; and (b) may draw on information about the complaint contained in a final report; and (c) must not include personal information about an individual unless the information has been previously published or the individual consents to the information being published.

87 Reporting to Minister (1) The commission may, on its own initiative, give the Minister a written report about any matter of public importance related to the commission, the commission’s functions or a matter that may be complained about under this Act. Note The Minister may direct the commission to report under s 17. (2) If the commission gives the Minister a report mentioned in subsection (1) or a third-party report, the Minister must present the report to the Legislative Assembly within 6 sitting days after the day the Minister receives the report.

88 Discrimination referral statements A discrimination referral statement is a statement in a notice in relation to a complaint to the effect that— under section 53B (Late application in exceptional circumstances) for the complaint to be heard. asks it to refer the complaint within the 60-day period (see s 53A).

88A Retirement village referral statements A retirement village referral statement is a statement in a notice in relation to a retirement village complaint to the effect that— under section 53I (Retirement village complaints—late asks it to refer the complaint within the 60-day period (see s 53H).

88B Occupancy dispute referral statements An occupancy dispute referral statement is a statement in a notice in relation to an occupancy dispute complaint to the effect that— under section 53S (Occupancy dispute complaints—late Note The commission must refer the complaint to the ACAT if the complainant asks it to refer the complaint within the 60-day period (see s 53R).

88C Conversion practice referral statements A conversion practice referral statement is a statement in a notice in relation to a conversion practice complaint to the effect that— under section 53ZB (Conversion practice complaints—late asks it to refer the complaint within the 60-day period (see s 53ZA).

Division 5.1 Health code of health rights and responsibilities Part 5 Additional matters for health service complaints Division 5.1 Health code of health rights and responsibilities 89 Approval of health code (1) The Minister may approve a code (the health code) of health rights and responsibilities. (2) An approved code is a disallowable instrument.

90 Contents of health code (1) The health code— (a) must deal with the implementation of the health provision principles; and (b) may deal with anything else relevant to the provision or use of a health provision principles means the following principles: (a) a person is entitled to receive appropriate health services of a high standard; (b) a person is entitled to be informed and educated about health matters, and available health services, that may be relevant to the person; (c) a person who can take part effectively in the making of a decision dealing with the person’s health is entitled to do so; (d) a person is entitled to be provided with health services in a considerate way that takes into account his or her background, needs and wishes;

Relationship between commission, health profession boards and

Division 5.2 (e) a provider, or person who provides care for a consumer, should be given consideration and recognition for the provider’s, or person’s, contribution to health care; (f) the confidentiality of information about a person’s health should be preserved; (g) a person is entitled to reasonable access to information about a person’s health; (h) a person is entitled to reasonable access to procedures for dealing with grievances about the provision of health services. Division 5.2 Relationship between commission, health profession boards and

91 Meaning of registered health practitioner and registered veterinary practitioner—div 5.2 registered health practitioner, in relation to a complaint, includes a health practitioner who was registered at the time the matter complained about happened or failed to happen. registered veterinary practitioner, in relation to a complaint, includes a veterinary practitioner who was registered at the time the matter complained about happened or failed to happen.

92 Referral of complaints to boards (a) the commission receives a complaint about a registered health practitioner or veterinary practitioner; or (b) as part of a complaint about a service—the commission considers the behaviour of a registered health practitioner or veterinary practitioner.

Division 5.2 Relationship between commission, health profession boards and (2) The commission must give the relevant board a copy of— (a) the complaint; and (b) all documents it has or gets relating to the complaint. (3) To remove any doubt, the referral of a complaint to a board does not prevent the commission from considering the complaint.

93 Complaints referred to veterinary practitioners board If a relevant board receives a complaint in relation to a registered health practitioner or veterinary practitioner from the commission, the board must tell the commission, in writing— (a) whether or not the board intends to take action in relation to the health practitioner or veterinary practitioner; and (b) if the board intends to take action in relation to the health practitioner or veterinary practitioner—what action it proposes to take. Note The Veterinary Practice Act 2018, pt 5 provides for joint consideration of complaints or occupational discipline matters for veterinary practitioners.

94 Consideration of complaints (1) The commission may consider a complaint about a health practitioner or a veterinary practitioner. (2) The consideration must be a commission-initiated consideration. (3) The relevant board must be kept informed about the consideration as if the board were the complainant. The commission must give the relevant board a final report. (4) The commission may give the relevant board any information, documents or other things the commission has in relation to the

94A Definitions—div 5.3 code of conduct means the health care worker code of conduct prescribed under section 94C. complaint means a complaint made under section 39 (1) (b) (iii) that a health care worker acted inconsistently with the code of conduct. corresponding law means a law, or part of a law, of a State that is— (a) about the conduct required of a health care worker; and (b) prescribed by regulation as a corresponding law for this division. final order—see section 94H (1). health care worker—see section 94B. interim order—see section 94G (1). prohibition or condition order, for a health care worker, means an order made by the commission, in writing, to do any of the following: (a) prohibit the health care worker from providing a health service; (b) prohibit the health care worker from offering, advertising or otherwise promoting a health service (including a health service provided by another person); (c) prohibit the health care worker from holding themselves out or otherwise promoting themselves as a provider of a health service; (d) prohibit the health care worker from providing advice in relation to the provision of a health service (including a health service provided by another person);

(e) place a condition on the provision of a health service by the health care worker. public servant complaint—see section 94D (1). public service entity means either of the following: (a) the public service; (b) a statutory office-holder. public statement means a public statement made by the commission under section 94I. register means the register of prohibition or condition orders under section 94Q. relevant professional body, for a health care worker, means a professional body— (a) of which the health care worker is, or is eligible to be, a member; or (b) that has members who provide the health service provided by the health care worker; or (c) that the commission is satisfied on reasonable grounds is relevant to the health care worker and the health service provided by the health care worker.

94B Meaning of health care worker—div 5.3 (1) In this division: health care worker— (a) means an individual who provides a health service to another individual; but (b) does not include an individual to the extent that the individual provides the health service— (i) as a health practitioner; or

(ii) as a registered teacher carrying out teaching duties. registered teacher—see the ACT Teacher Quality Institute Act 2010, dictionary. teaching—see the ACT Teacher Quality Institute Act 2010, section 8.

94C Code of conduct may be prescribed A regulation may prescribe a code of conduct in relation to the provision of a health service by a health care worker.

94D Code of conduct breach by public servants (1) This section applies to a complaint made to the commission about a public servant acting inconsistently with the code of conduct in relation to the provision of a health service to another individual as part of their employment as a public servant (a public servant complaint). (2) The Executive may determine a process the commission and relevant public service entities must follow in dealing with public servant complaints. (3) Before determining a process, the Executive must consult the commission. (4) The Executive must be reasonably satisfied that a process determined under subsection (2) gives a health care worker who is the subject of a public servant complaint no less protection than that given to a health care worker who is the subject of a prohibition or condition order, or public statement, to which section 94F applies. (5) A process may include provision for the following: (a) the sharing of information mentioned in section 94E (1) about a public servant complaint with the relevant public service entity;

(b) who the relevant public service entity is for a particular complaint; (c) the commission and the public sector standards commissioner to establish a relationship protocol to help ensure public servant complaints are dealt with promptly and efficiently; (d) the commission not to make a final prohibition or condition order in relation to a public servant complaint while a misconduct procedure is being conducted, without the agreement of the public sector standards commissioner; (e) the commission to be able to extend the period an interim order is in force while a misconduct procedure is conducted. (6) A process is a disallowable instrument. (7) In this section: misconduct procedure means a misconduct procedure under the Public Sector Management Act 1994 or an enterprise agreement approved under the Fair Work Act 2009 (Cwlth).

94E Code of conduct breach by public servants—information sharing (1) The commission may disclose any information that has been disclosed to, or obtained by, the commission in the consideration of a public servant complaint to an information sharing entity if the commission considers that— (a) the information is relevant to the exercise of the information sharing entity’s functions; and (b) the disclosure of the information to the information sharing entity is appropriate.

(2) An information sharing entity may disclose any information held by the entity to the commission if the entity considers that— (a) the information is relevant to the commission’s consideration of a public servant complaint; and (b) the disclosure of the information to the commission is appropriate. head, of a public service entity, means— (a) for the public service—the head of service; and (b) for an administrative unit—the director-general of the administrative unit; and (c) for a statutory office-holder—the statutory office-holder. information sharing entity means either of the following: (a) the public sector standards commissioner; (b) the head of a public service entity.

94F Principles for making prohibition or condition order or In making a prohibition or condition order or public statement, the commission— (a) must act with as little formality as reasonably practicable; and (b) is bound by the rules of natural justice; and (c) is not bound by the rules of evidence; and (d) before making a decision affecting a person, must give the person an opportunity to make submissions to the commission about the decision. Note The commission must deal with complaints promptly and efficiently (see s 45).

94G Interim prohibition or condition order (1) The commission may make a prohibition or condition order in relation to a health care worker for a stated period of not more than 8 weeks (an interim order) if the commission— (a) is considering a complaint in relation to the health care worker; and (b) believes on reasonable grounds that— (i) the health care worker acted inconsistently with the code of conduct; and (ii) there would be a serious risk to the health or safety of the public if the health care worker continued to provide a (2) The period of the interim order must not be longer than the period reasonably required for the commission to decide if a final prohibition or condition order is required. (3) For a public servant complaint, the period of an interim order may be affected by the process determined under section 94D. (4) As soon as practicable after making an interim order, the commission must give a copy of the order to the health care worker. Note The commission must also give the health care worker a statement of reasons (see s 94J). (5) The commission may give a copy of an interim order to— (a) any relevant professional body for the health care worker; and Examples—par (b) • the health care worker’s employer • a related health service provider • a client

94H Final prohibition or condition order (1) The commission may make a prohibition or condition order in relation to a health care worker for a stated period, including a permanent order, (a final order) if— (a) the commission is satisfied on reasonable grounds that there would be a serious risk to the health or safety of the public if the health care worker continued to provide a health service; and (b) either of the following apply: (i) the commission— (A) has considered a complaint in relation to the health care worker; and (B) is satisfied on reasonable grounds that the health care worker acted inconsistently with the code of conduct; (ii) the health care worker is convicted of an offence under any of the following in relation to a health service provided by the health care worker: (A) the Competition and Consumer Act 2010 (Cwlth); (B) the Fair Trading (Australian Consumer Law) Act 1992; (C) the Health Act 1993, section 127 (Provision of regulated health service by person not health practitioner); (D) the Health Practitioner Regulation National Law (ACT), part 7, division 10; (E) the Public Health Act 1997. (2) The period of the final order must not be longer than the period reasonably required to protect the health or safety of the public.

(3) However, if the health care worker is a health practitioner, the commission must not make a final order without— (a) giving the relevant board for the health practitioner a reasonable opportunity to respond to the proposed order; and (b) considering the response (if any). (4) As soon as practicable after making a final order, the commission must give a copy of the order to the health care worker. Note The commission must also give the health care worker a statement of reasons (see s 94J). (5) The commission may give a copy of a final order to— (a) any relevant professional body for the health care worker; or

94I Public statement about health care worker or health service (1) The commission may make a public statement in relation to a health care worker if the commission believes on reasonable grounds that there is a serious risk to the health or safety of the public in relation to— (a) a health service provided or offered by the health care worker; or (b) the health care worker being convicted of an offence under any of the following in relation to a health service provided by the health care worker: (i) the Competition and Consumer Act 2010 (Cwlth); (ii) the Fair Trading (Australian Consumer Law) Act 1992; (iii) the Health Act 1993, section 127 (Provision of regulated health service by person not health practitioner);

(iv) the Health Practitioner Regulation National Law (ACT), part 7, division 10; (v) the Public Health Act 1997. (2) The commission may make a public statement in relation to a health service if the commission believes on reasonable grounds that there is a serious risk to the health or safety of the public arising from the (3) A public statement may be made in any form. (4) A public statement made in relation to a health care worker may include any of the following: (a) the identity of the health care worker; (b) information, including a warning, about— (i) the health care worker; or (ii) the health service provided by the health care worker; (c) if the health care worker provides the health service in connection with a provider— (i) the identity of the provider; and (ii) information, including a warning, about the provider; (d) information contained in a final order made in relation to the health care worker. (5) A public statement made in relation to a health service may contain information, including a warning, about the health service generally. (6) The commission— (a) may vary or withdraw a public statement; and (b) if a statement is varied or withdrawn—must set out the reason for the variation or withdrawal in the same form as the statement was made.

94J Statement of reasons for prohibition or condition order or (1) If the commission makes a prohibition or condition order or a public statement in relation to a health care worker, the commission must give a statement of reasons for making the order or statement to— (a) the health care worker; and (b) for a final order or a public statement made in relation to a complaint made about the health care worker—the complainant. Note For what must be included in a statement of reasons, see the Legislation Act, s 179. (2) The commission may also do 1 or more of the following: (a) make the statement of reasons publicly available; (b) give a copy of the statement to any relevant professional body for the health care worker; (c) give a copy of the statement to another person if satisfied on reasonable grounds it is in the interest of the health or safety of the public to do so. (3) Before giving the statement of reasons to a person or making it publicly available, the commission may remove confidential information from the statement if the commission sets out in the statement— (a) that information was removed because it was confidential; and (b) the nature of the information that was removed. (4) This section does not affect the power of a court to make an order for the discovery of a document or to require the giving of evidence or the production of documents to a court.

confidential information, in relation to a statement of reasons, means information— (a) that is not publicly available when the statement is made; and (b) that is about the personal or business affairs of a person other than the person who is given the statement; and (c) where 1 or more of the following apply: (i) the information was given to the commission in confidence; (ii) publishing the information would reveal a trade secret; (iii) the information was provided in compliance with a duty imposed under an Act; (iv) the commission would breach a law by providing the information.

94K Correction of public statement (1) This section applies if the commission becomes aware a public statement is incorrect in a material way. (2) The commission must make a statement setting out the correct information or withdraw the public statement. Note If a statement is changed or withdrawn, the commission must set out the reason for the change or withdrawal in the same form as the statement was made (see s 94I (6)).

94L Variation of prohibition or condition order (1) A health care worker may, in writing, ask the commission to vary a prohibition or condition order made in relation to the health care worker if there has been a material change in a matter giving rise to the making of the order.

(2) The commission must, on application or on its own initiative, vary an order if the commission is satisfied— (a) a prohibition or condition in the order is no longer required to protect the health or safety of the public; or (b) a prohibition or condition in the order is more restrictive than what is reasonably required to protect the health or safety of the public; or (c) the period of the order is longer than the period reasonably required to protect the health or safety of the public. (3) However, if the health care worker is a health practitioner, the commission must not vary an order without— (a) giving the relevant board for the health practitioner a reasonable opportunity to respond to the proposed order; and (b) considering the response (if any). (4) As soon as practicable after varying an order, the commission must give a copy of the varied order to the health care worker. (5) The commission may give a copy of a varied order to— (a) any relevant professional body for the health care worker; or (6) If an order is varied, the commission must include on the register the reason for the variation.

94M Cancellation of prohibition or condition order (1) A health care worker may, in writing, ask the commission to cancel a prohibition or condition order made in relation to the health care worker if there has been a material change in a matter giving rise to the making of the order.

(2) The commission must, on application or on its own initiative, cancel an order if the commission is satisfied the order is no longer required to protect the health or safety of the public. (3) As soon as practicable after cancelling an order, the commission must tell the following, in writing, the order is cancelled: (a) the health care worker; (b) any relevant professional body for the health care worker; (c) another person if satisfied on reasonable grounds that it is appropriate to do so. (4) If an order is cancelled, the commission must include on the register the reason for the cancellation.

94N Health care worker must give notice of registration as health practitioner (a) a prohibition or condition order has been made in relation to a person who is a health care worker; and (b) during the period of the order, the person becomes registered under the Health Practitioner Regulation National Law (ACT) to practise in a health profession. (2) The person must give the commission written notice of the registration as soon as practicable after being registered. (3) The commission may exchange information with the relevant board for the health profession in which the person has been registered about— (a) the person’s compliance with the code of conduct; and (b) any action taken in relation to the person for acting inconsistently with the code of conduct.

94O Non-compliance with prohibition or condition order A person commits an offence if— (a) the person is a health care worker; and (b) a prohibition or condition order has been made in relation to the person; and (c) the person has been given a copy of the prohibition or condition order; and (d) the person contravenes the order. Maximum penalty: 100 penalty units, imprisonment for 12 months, or both.

94P Non-compliance with corresponding prohibition or condition order (1) A person commits an offence if— (a) the person is a health care worker; and (b) a corresponding prohibition or condition order is in force in relation to the person in a State; and (c) the person provides a health service in the ACT that would contravene the order if it were in force in the ACT. Maximum penalty: 100 penalty units, imprisonment for 12 months, or both. corresponding prohibition or condition order means an order made under a corresponding law that— (a) corresponds, or substantially corresponds, to a prohibition or condition order made under this division; and

Notification and review of decisions Division 5.4 (b) is prescribed by regulation as a corresponding prohibition or condition order for this division.

94Q Commission to keep register The commission must— (a) keep a register of prohibition or condition orders made; and (b) ensure that current prohibition or condition orders are accessible at all times free of charge on a website approved by the commission.

94R Exchange of information The commission may exchange information with an entity responsible for administering or upholding a corresponding law about (a) a health care worker’s compliance with the code of conduct or a corresponding law; (b) action taken in relation to a health care worker for acting inconsistently with the code of conduct or a corresponding law.

94S Meaning of reviewable decision––div 5.4 reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

94T Reviewable decision notices If the commission makes a reviewable decision, the commission must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision. Note The commission must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

94U Applications for review An entity mentioned in schedule 1, column 4 in relation to a reviewable decision may apply to the ACAT for a review of the decision.

Child safe standards Part 5A

Part 5A Child safe standards

94V Child safe standards A regulation may prescribe standards (the child safe standards) in relation to the provision of a service by providers of services for children and young people.

94W Implementing child safe standards A provider of a service for children and young people must implement the child safe standards.

94X Review of child safe standards (1) The Minister must review the operation of this part as soon as practicable after the end of its 5th year of operation. (2) The Minister must present a report of the review to the Legislative Assembly within 12 months after the day the review is started. (3) This section expires 7 years after the day it commences.

95 Information about complaints (1) This section applies to the following services: (a) a disability service; (b) a health service; (c) a service for children and young people; (d) a service for older people. (2) If the service is provided at premises, the provider must provide information in a prominent position at the premises to service consumers about their right to make complaints under this Act and the Health Practitioner Regulation National Law (ACT) and how feedback may be given to the service provider. Examples of providing information 1 a notice on the wall or a pamphlet in the waiting room 2 for a service provided at a person’s home—giving the person a pamphlet (3) A service provider commits an offence if the provider fails to comply with subsection (2). Maximum penalty: 5 penalty units. (4) An offence against subsection (3) is a strict liability offence.

96 Inspection of incorporated documents (1) This section applies to an incorporated document, or an amendment or replacement of an incorporated document. Note For the meaning of incorporated document, see the dictionary.

(2) The director-general must ensure that the document, amendment or replacement is made available for inspection free of charge to the public on business days at reasonable times at the office of the commission or an administrative unit administered by the director-general. amendment, of an incorporated document—see section 97 (6).

97 Notification of certain incorporated documents (1) This section applies to— (a) an incorporated document; or (b) an amendment of, or replacement for, an incorporated document. Example of replacement document a new edition of the incorporated document Note For the meaning of incorporated document, see the dictionary. (2) The director-general may prepare a written notice (an incorporated document notice) for the incorporated document, amendment or replacement that contains the following information: (a) for an incorporated document—details of the document, including its title, author and date of publication; (b) for a replacement of an incorporated document—details of the replacement, including its title, author and date of publication; (c) for an amendment of an incorporated document—the date of publication of the amendment (or of the document as amended) and a brief summary of the effect of the amendment;

(d) for an incorporated document or any amendment or replacement— (i) a date of effect (no earlier than the day after the day of notification of the notice); and (ii) details of how access to inspect the document, amendment or replacement may be obtained under section 96 (Inspection of incorporated documents); and (iii) details of how copies may be obtained, including an indication of whether there is a cost involved. (3) An incorporated document notice is a notifiable instrument. (4) An incorporated document, and any amendment or replacement of an incorporated document, has no effect under this Act unless— (a) an incorporated document notice is notified in relation to the document, amendment or replacement; or (b) the document, amendment or replacement is notified under the Legislation Act, section 47 (6). (5) The Legislation Act, section 47 (7) does not apply in relation to incorporated documents. (6) In this section: amendment, of an incorporated document, includes an amendment of a replacement for the incorporated document. replacement, for an incorporated document, means— (a) a document that replaces the incorporated document; or (b) a document (an initial replacement) that replaces a document mentioned in paragraph (a); or (c) a document (a further replacement) that replaces an initial replacement or any further replacement.

98 Victimisation etc (1) A person (the first person) commits an offence if the first person causes or threatens to cause a detriment to someone else (the other person) because— (a) the other person has— (i) made or amended a complaint under this Act; or (ii) given information or produced a document or other thing to a person exercising a function under this Act or a rights Act; or (iii) given information, produced a document or other thing or answered a question as required under this Act; or (b) the first person believes that the other person intends to do something mentioned in paragraph (a). (2) A person commits an offence if the person threatens or intimidates someone else with the intention of causing the other person— (a) not to make a complaint under this Act; or (b) to amend, or not to amend, a complaint made under this Act; or (c) to withdraw a complaint made under this Act.