Creates a statutory office called the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People (the Commissioner) and continues the National Commission (the Commission) as a Commonwealth statutory agency whose job is to assist the Commissioner (sections 10, 33).
Sets out the Commissioner’s functions: promote the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people (defined as persons under 25), advise the Commonwealth, commission research, run educational programs, undertake public advocacy, coordinate across governments, conduct inquiries and make recommendations (section 11; section 17).
Gives the Commissioner broad operational powers to do “all things necessary or convenient” to perform those functions and expressly protects the Commissioner from direction by ministers in the exercise of those powers (sections 12, 15).
Provides an information‑gathering power: the Commissioner may issue written notices requiring non‑government persons and organisations to provide information, produce documents or appear to answer questions; failure to comply attracts civil penalties (section 39–43; section 41). Notices to Australian government entities are limited so they do not authorise production of personal information without consent (39(3)).
Removes the ordinary privilege against self‑incrimination for individuals required to answer Commissioner notices but bars the use of compelled answers as evidence against that person in criminal proceedings (section 44).
The National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026 changes the basis on which the National Commission for Aboriginal and Torres Strait Islander Children and Young People operates. Previously established as an Executive Agency under section 65 of the Public Service Act 1999 from 13 January 2025, the Act continues the National Commission in existence as a Statutory Agency under clause 33. The office of National Commissioner for Aboriginal and Torres Strait Islander Children and Young People continues under section 10. This shift grants the Commissioner the status of a statutory officer with complete discretion in performing functions and exercising powers under section 15, free from direction by any person. The Act sets out objects in section 3 that focus on promoting the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people under 25 years old, identifying systemic issues, supporting self-advocacy and driving accountability for government policies. It introduces specific appointment criteria in subsection 24(5) requiring the Commissioner to be an Aboriginal person and or a Torres Strait Islander with community acceptance and significant experience in community life, selected through a merit-based process involving Aboriginal and Torres Strait Islander communities under subsection 24(6). The Act also enables the National Commission to provide advisory services to non-government clients on a fee-for-service basis under section 23, a function not previously formalised in this manner. Transitional arrangements are handled by the accompanying National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Bill 2026 to ensure continuity of work, appointments and staff from the Executive Agency model. Commencement occurs on 1 July 2026 under section 2, provided Royal Assent was received before that date, which it was on 26 March 2026. The Act extends to external Territories under section 6 and binds the Crown under section 7 while preserving concurrent operation of State and Territory laws under section 8.
Official source available
Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.
Introduced with the National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Bill 2026, the bill provides for the continuation of the National Commission for Aboriginal and Torres Strait Islander Children and Young People as a statutory agency, with the functions and powers to advance the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people.
Parliamentary progress
Progress
House of Representatives
Introduced and read a first time
05 Feb 2026
Second reading moved
05 Feb 2026
Second reading debate
10 Feb 2026
Second reading debate
11 Feb 2026
Second reading agreed to
11 Feb 2026
Third reading agreed to
11 Feb 2026
Senate
Introduced and read a first time
03 Mar 2026
Second reading moved
03 Mar 2026
Second reading debate
23 Mar 2026
Second reading agreed to
25 Mar 2026
Committee of the Whole debate
25 Mar 2026
Third reading agreed to
25 Mar 2026
Finally passed both Houses
25 Mar 2026
Assent
Act no: 14
Year: 2026
26 Mar 2026
Notes
Documents and transcripts
Text of bill
First reading
As passed by both Houses
Explanatory memoranda
Explanatory memorandum
Transcript of speeches
All second reading speeches
Minister's second reading speech
Proposed amendments
Senate
2R - Australian Greens [sheet 3658]
WATERS, Sen Larissa
Creates criminal and civil limits on the handling of information obtained under the Act: entrusted persons (Commissioner, staff, consultants and persons assisting) must not misuse “protected information”; unauthorised use or disclosure can attract imprisonment or fines, subject to listed authorisations for use and disclosure (sections 45–46; sections 47–54).
Allows the Commissioner to make written recommendations after inquiries and to request a written response from the person or body the recommendation targets; however, the Bill does not create a statutory requirement that all entities must respond (section 17).
Permits the Commission to provide advisory services to non‑government clients and to charge fees for such services; fees are recoverable by the Commonwealth (section 23). The Finance Minister may make accounting directions to implement fee handling (section 62).
Sets out appointment, reappointment and eligibility rules for the Commissioner: appointment by the Minister but the appointee must be an Aboriginal and/or Torres Strait Islander accepted by their community and selected via a process that involves Aboriginal and Torres Strait Islander people and public advertising; terms are full‑time, up to 5 years, reappointment allowed but total time not to exceed 7 years (section 24–26).
Prescribes governance and accountability mechanics: the Commissioner is the accountable authority under the PGPA Act (section 33), must include specified material in the Commission’s annual report (section 61), and the Minister must commission an independent review of the Act starting three years after commencement (section 64).
Provides protections and delegations: the Commissioner and staff have statutory immunity for acts done in good faith under the Act (section 58); the Minister and Commissioner may delegate certain powers (sections 59–60); the Minister may make rules by legislative instrument, including incorporating external documents into rules in specified ways (sections 65, 63).
Who the law affects and how
Aboriginal and Torres Strait Islander children and young people (under 25): the Act is explicitly directed at promoting their best interests, cultural identity and wellbeing (sections 3, 14).
The Commissioner and Commission staff: gain statutory office, powers (including information‑gathering and disclosure authorities), protections from ministerial direction and legal immunity for acts done in good faith (sections 10–16, 39–47, 58).
Non‑government persons and organisations (individuals, businesses, non‑government bodies): can be required to supply information, documents and appear to answer questions; failure to comply can incur civil penalties (sections 39–43, 56).
Australian government entities and officials: may make information referrals to the Commissioner and may be recipients of disclosures, but notices do not authorise the production of personal information without consent and civil penalties do not apply to government entities in the same way (section 39(3); section 41).
Private sector advisors and consultancies: the Commission may offer fee‑for‑service advisory work to non‑government clients (section 23), which creates a new, Commonwealth‑backed supplier of specialist Indigenous child‑policy advice.
Why it matters (stated purpose and practical tests)
Stated purpose: the Act is intended to establish an independent, permanent national statutory Commissioner and Commission to drive coordination, accountability, research and advocacy on systemic issues affecting Aboriginal and Torres Strait Islander children and young people (section 3; explanatory memorandum).
Testing that purpose against practical effects and trade-offs:
Accountability mechanism vs. enforceability: the Commissioner can conduct inquiries and publish recommendations and ask for written responses (section 17). That creates transparency and reputational pressure on governments and other institutions, but the Act stops short of imposing mandatory statutory obligations on states or other bodies to implement reforms or to reply in all cases. The Act therefore creates an oversight and advocacy lever rather than direct compulsion of policy changes (section 17).
Information powers vs. privacy and compliance burden: the Commissioner’s notice power (section 39) gives real investigatory reach over private persons and organisations (civil penalties for non‑compliance—section 41), and the privilege against self‑incrimination is limited (section 44). To manage privacy and harm risks the Act: (a) criminalises wrongful use or disclosure of ‘protected information’ by entrusted persons (section 45); (b) specifies authorised disclosure pathways (sections 47–54); and (c) limits compulsory production of personal information from government entities (39(3)). These layered rules balance investigatory power with confidentiality but impose compliance obligations on respondents and strong duties on Commission personnel.
Independence and democratic control: the Commissioner is appointed by the Minister (section 24) but the Act requires Indigenous selection criteria and involvement in designing the selection process (section 24(5)–(6). Once appointed, the Commissioner has statutory independence from direction in performing functions (section 15). This divides decision‑making: the executive (Minister) appoints, Parliament sets the role, but operational discretion rests with the Commissioner. That design reduces ministerial control over day‑to‑day outputs while keeping appointment and review levers with government.
Public service resourcing and opportunity cost: the Act establishes an ongoing statutory agency funded from Commonwealth appropriations and empowered to charge fees for non‑government advisory work (section 33; section 23). The Act itself does not allocate a specific budget; operational costs fall on the Commonwealth budget (section 62 sets out accounting directions). Charging for advisory services is novel for a national commissioner and creates potential competition with private consultancies for non‑government advisory engagements (section 23).
Bureaucratic discretion and rule‑making risk: the Minister may make rules (section 65), and rules may incorporate external materials (section 63). That allows detailed procedural design by rule rather than primary legislation and can create complex delegated instruments that change practice over time. The Act requires publication when rules incorporate other instruments (63(3)).
Concrete behavioural changes the Act will impose
Organisations and individuals (non‑government) asked by the Commissioner will generally need to gather and provide information within 14 days and may have to appear and answer questions (sections 40(3)–(4); 41; 43).
Entrusted persons (staff, consultants) will be subject to criminal penalties if they misuse or disclose protected information outside authorised channels (sections 45–46).
The Commissioner will be able to publicise findings and reports without ministerial approval (section 15(2); section 16).
Key statutory provisions to note
Selection and Indigenous requirement for appointment: section 24(5)–(6).
Information‑gathering powers and civil penalties for non‑compliance: sections 39–43, 56.
Self‑incrimination protections and evidentiary limits: section 44.
Criminal offence for misuse of protected information and authorised disclosure pathways: sections 45–54.
Fee‑for‑service advisory role and debt recovery: section 23.
Ministerial rules power and incorporation of external materials: sections 65 and 63.
Independence clause and immunity for good faith acts: sections 15 and 58.
Immediate implementation and accountability mechanics
The Commissioner is appointed by the Minister subject to the Aboriginal and Torres Strait Islander selection criteria (section 24). The Commission operates as a listed non‑corporate Commonwealth entity with the Commissioner as accountable authority under the PGPA Act (section 33). The Minister must commission an independent review of the Act starting three years after commencement and table the review and a government response (section 64).
Main concepts
Core concepts in the Act centre on systemic reform and accountability for outcomes affecting Aboriginal and Torres Strait Islander children and young people. The general functions of the National Commissioner are listed in subsection 11(1) and include promoting coordination among Australian government entities to identify solutions to systemic issues, providing advice to the Commonwealth on policy development and delivery, undertaking and commissioning research into barriers to development safety and wellbeing, delivering educational programs that empower children and young people to advocate for their views, undertaking public advocacy to amplify voices and strengths, and engaging directly with children and young people including those in remote areas and living with disability. Additional functions in subsection 11(2) encompass conducting inquiries under section 17, accepting referrals under section 19, referring matters to other entities under section 20, contributing to external inquiries under section 22, providing advisory services under section 23, collaborating with bodies such as the Australian Human Rights Commission, and engaging with international human rights mechanisms. The Act embeds principles in section 14 requiring performance of functions in the best interests of Aboriginal and Torres Strait Islander children and young people, in a manner that protects and promotes cultural identity and development through connections to family and community, and consistent with the United Nations Declaration on the Rights of Indigenous Peoples and Australia's obligations under the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities and other relevant instruments. Independence is a central concept under section 15, allowing the Commissioner to publicise matters as appropriate. Inquiries may lead to written recommendations under subsection 17(3), with a power to request responses under subsection 17(4). Information handling concepts distinguish relevant information, protected information and protected personal information under section 45, with strict controls on use and disclosure balanced by authorisations in Division 4 of Part 4. The Act incorporates a requirement for an independent review of its operation under section 64 commencing three years after commencement, with public consultation and tabling of the report and government response.
Who it affects
The Act directly affects Aboriginal and Torres Strait Islander children and young people defined in section 5 as Aboriginal persons and Torres Strait Islanders under 25 years old, by establishing mechanisms to promote their rights interests development safety and wellbeing and to amplify their voices in policy processes. It affects Australian government entities and officials, including Commonwealth entities, State and Territory government entities and their officials, who may receive requests for information under section 39, referrals under section 20 or disclosures under sections 48 and 49, though notices to such entities do not authorise provision of personal information without consent under subsection 39(3). The National Commissioner and staff of the National Commission are affected through their appointment, employment under the Public Service Act 1999 and obligations regarding protected information. Consultants engaged under section 37 and persons assisting under section 36 are subject to directions from the Commissioner and protections under section 58. Non-government persons or bodies may be required to provide information or appear to answer questions under section 39, with civil penalties for non-compliance under section 41, and may purchase advisory services under section 23. State and Territory commissioners, guardians, advocates, coroners and other entities may refer matters under section 19 or receive referrals under section 20. The Minister for Social Services is affected through powers to appoint the Commissioner under section 24, request inquiries under section 18, make rules under section 65 and receive annual reports under section 61. The Remuneration Tribunal determines remuneration under section 25. Broader effects extend to organisations involved in child protection, youth justice, education, health and family services that interact with systemic issues identified in inquiries, as well as Aboriginal Community Controlled Organisations and peak bodies such as SNAICC that have advocated for the role. The Act does not create new obligations for individual families or children but supports their engagement through consultation and educational programs.
What people will want to know
People will want to know how the National Commissioner can be contacted for referrals or to raise systemic issues, with the Act providing for engagement through the National Commission's functions but not specifying contact details in the legislation itself. They will want to know whether the Commissioner can investigate individual complaints, and the answer is that functions are primarily directed at systemic issues although the Commissioner may refer individual complaints to another Australian government entity or official under the note to section 11. Practical questions include what happens if a person receives a notice under section 39 requiring information or documents, with a minimum 14-day period for compliance under subsections 40(3) and 40(4), a civil penalty of 30 penalty units for non-compliance by non-government persons under section 41, and an exception for reasonable excuse. Individuals will want to know about protections against self-incrimination under section 44, where information given is not admissible in criminal proceedings except for false or misleading information offences under the Criminal Code. Parents, carers and community members will want to know how children and young people can participate, through direct engagement functions in paragraph 11(1)(f) and educational programs under paragraph 11(1)(d). Organisations will want to know about fee-for-service advisory services under section 23, including that fees must not amount to taxation and are recoverable as debts, with details to be reported in the annual report under section 61. Government agencies will want to know their obligations when receiving a notice, noting that Australian government entities are exempt from civil penalties under subsection 41(1) but must still consider consent requirements for personal information. Stakeholders will want to know about the independent review under section 64, which must commence three years after commencement, include public consultation and result in a tabled report with a government response within six months. People will also want to know about annual reporting requirements under section 61, including details of ministerial inquiry requests accepted or declined and reasons for declining.
Status and what happens next
The Bill received Royal Assent on 26 March 2026 and became the National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026, Act No. 14 of 2026. It was introduced in the House of Representatives on 5 February 2026, passed that House on 11 February 2026, introduced in the Senate on 3 March 2026 and finally passed both Houses on 25 March 2026. The Act commences on 1 July 2026 under section 2. The accompanying Transitional Provisions Bill ensures seamless continuation of the National Commission from its Executive Agency status. Following commencement the National Commissioner, currently Sue-Anne Hunter succeeding Acting Commissioner Lil Gordon, will operate under the new statutory framework with enhanced independence. The Minister may make rules under section 65, and these may incorporate external materials under section 63 with publication requirements on the Department's website. An annual report must be prepared under section 61 of the Act and section 46 of the PGPA Act, including specific details on inquiry requests, advisory service fees and notices issued to government entities. The first independent review under section 64 must commence as soon as practicable after three years from commencement, incorporate public consultation, be completed within nine months and be tabled in Parliament, with a government response to any recommendations tabled within six months. No schedules of amendments were made during parliamentary passage according to available records. The Senate Standing Committee for the Scrutiny of Bills considered the Bill in Scrutiny Digest 3 of 2026 and the Parliamentary Joint Committee on Human Rights in Report 2 of 2026, both seeking ministerial advice on certain provisions. An electronic version of the Act is available on the Federal Register of Legislation.
Powers, duties and rights created
The Act creates powers for the National Commissioner including the power to do all things necessary or convenient for performing functions under section 12, to conduct research and inquiries into systemic issues under section 17, to make written recommendations and request responses under subsections 17(3) and 17(4), to accept or decline ministerial requests for inquiries under section 18, to accept referrals from commissioners, coroners and other entities under section 19, to refer matters to other entities and provide information under section 20, to contribute to external inquiries under section 22, to provide advisory services and charge fees under section 23, and to require information, documents or attendance to answer questions by written notice under section 39 where there is a reasonable belief of relevance. The Commissioner has power to publish reports under section 16, give reports to the Minister for tabling under subsections 16(2) and 16(3), delegate functions to SES or Executive Level 1 staff under section 60, and make directions about use or disclosure of information under section 54. Duties include performing functions in accordance with general principles under section 14, complying with directions when delegated powers are exercised, protecting protected information under section 45 with criminal penalties for unauthorised use or disclosure, and including specified matters in the annual report under section 61. The National Commission has the duty to assist the Commissioner under section 34. Rights created include the right of the Commissioner to complete discretion and independence under section 15, the right of persons to receive certified copies of retained documents under subsection 42(4), the right of individuals not to have self-incriminating information used against them in most criminal proceedings under subsection 44(2), and protections from liability for the Commissioner, staff, assistants and consultants for acts done in good faith under section 58. The Act preserves the right of the Crown not to be liable to pecuniary penalties or prosecution under subsection 7(2), with an exception for authorities of the Crown. Children and young people gain no new enforceable individual rights but benefit from supported engagement and advocacy mechanisms.
Money, penalties and enforcement
The Act does not appropriate funds but the second reading speech notes government investment of $33.5 million over four years from 2025-26 and $8.4 million a year ongoing to support operations, building on the earlier $5.9 million over two years for interim arrangements. Fees for advisory services under subsection 23(2) are debts due to the Commonwealth and recoverable in court, though the Commonwealth is notionally liable to pay such fees under section 62 with the Finance Minister able to give directions for accounting purposes. Civil penalty provisions in sections 41 and 43 attract a maximum of 30 penalty units, currently $9,900, for failure by non-government persons to comply with information notices or to answer questions, enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 by the Commissioner or SES employees of the National Commission in the Federal Court, Federal Circuit and Family Court or State and Territory courts with jurisdiction. An offence under section 45 for an entrusted person using or disclosing protected information carries a maximum penalty of imprisonment for one year or 50 penalty units, or both. Exceptions apply for reasonable excuse in civil penalty matters and for authorised disclosures under Division 4 of Part 4. The Act does not create powers of arrest, detention, entry, search or seizure. Enforcement of civil penalties does not apply to the Crown or its authorities under subsections 56(5) and 56(6). The Commissioner must report on fees charged and certain non-compliance by government entities in the annual report under section 61. Rules made under section 65 may prescribe remuneration and allowances where no Remuneration Tribunal determination applies under section 25.
Pressure points and controversies
The Senate Standing Committee for the Scrutiny of Bills raised concerns in Scrutiny Digest 3 of 2026 relating to privacy implications of information-gathering powers, the abrogation of the privilege against self-incrimination under section 44, immunity from civil and criminal liability for the Commissioner and staff under section 58, and the incorporation of external materials into rules under section 63. The Parliamentary Joint Committee on Human Rights considered the Bill in Report 2 of 2026. These provisions represent trade-offs between granting the Commissioner effective powers to hold systems accountable on systemic issues and protecting individual rights to privacy and against self-incrimination. The information-gathering power in section 39 applies to any person reasonably believed to hold relevant information, with civil penalties for non-compliance, yet excludes Australian government entities from penalties and limits their disclosure of personal information without consent. The Statement of Compatibility with Human Rights argues that the focus on systemic issues rather than individual cases mitigates privacy impacts. Another policy trade-off lies in the Commissioner's ability to request but not compel responses to recommendations under subsection 17(4), in contrast to some State and Territory commissioners who can require responses from certain authorities. The fee-for-service advisory role under section 23 is novel for a Commonwealth body of this type and raises questions about resource allocation and potential conflicts with core functions, although fees must not amount to taxation. The requirement for Aboriginal and Torres Strait Islander community involvement in designing the selection process under subsection 24(6) balances independence with cultural legitimacy but may create administrative complexity. The three-year independent review under section 64 provides a mechanism to assess effectiveness but defers detailed evaluation of these trade-offs until after commencement.
What changes if it passes
With Royal Assent granted on 26 March 2026 and commencement on 1 July 2026, the National Commission transitions from an Executive Agency to a Statutory Agency, giving the Commissioner statutory independence under section 15 and removing the ability of the executive to alter the agency's structure without parliamentary action. The Commissioner gains explicit powers to conduct inquiries, make recommendations and request responses, require information with civil penalty backing, publish reports and provide fee-based advisory services. Appointment processes now require legislated criteria ensuring the office holder is an Aboriginal person and or Torres Strait Islander with community experience, selected through a community-involved merit-based process. Staff remain engaged under the Public Service Act 1999 but the Commissioner becomes the Agency Head and accountable authority under the PGPA Act. Government entities face new formal processes for responding to information notices and referrals, while non-government persons face potential civil penalties for non-compliance with notices. The objects and principles in sections 3 and 14 provide a statutory framework guiding all functions toward cultural identity, human rights consistency and best interests of children and young people. An ongoing obligation for public consultation in the three-year review and detailed annual reporting on inquiry requests and fees increases transparency. The ability to engage with international human rights mechanisms and collaborate with other commissioners is formalised. Overall the legislative framework locks in the Commission's role in driving accountability for Closing the Gap targets related to child protection, youth justice and development, with mechanisms for continuity of existing work through the Transitional Provisions Act.
Social post angles
Commissioner role now statutory: The National Commission for Aboriginal and Torres Strait Islander Children and Young People has moved from executive agency status to a legislated statutory body with stronger independence protections. Information powers explained: The Act gives the Commissioner power to require documents and answers from non-government parties, backed by civil penalties of 30 units, while protecting government entities from those penalties. Cultural selection rules: Appointment of the Commissioner must follow a merit-based process designed with Aboriginal and Torres Strait Islander communities and requires the office holder to be accepted by their community. Fee-for-service advice: Non-government organisations can now purchase advisory services from the National Commission on policies affecting First Nations children, with fees reported publicly each year. Three-year review locked in: Parliament will receive an independent public review of the Commission's effectiveness, including recommendations and a government response, starting three years after 1 July 2026. Systemic focus only: The Commissioner can refer individual complaints elsewhere but concentrates on identifying and recommending solutions to systemic barriers in child protection and youth justice. Recommendation response requests: After an inquiry the Commissioner can ask agencies to respond to recommendations in writing, though unlike some State commissioners there is no legal compulsion to reply. Annual reporting details: Each year the Commission must publish how many ministerial inquiry requests it accepted or declined and the reasons for any refusals, adding a layer of accountability.
CW - Australian Greens [sheet 3659]
WATERS, Sen Larissa
Schedules of amendments
No documents at present
Bills digest
Bills Digest
Notes
Considered by scrutiny committee (25/02/2026): Senate Standing Committee for the Scrutiny of Bills; Scrutiny Digest 3 of 2026
Considered by scrutiny committee (04/03/2026): Parliamentary Joint Committee on Human Rights; Report 2 of 2026
An electronic version of this Act is available on the Federal Register of Legislation (www.legislation.gov.au)
This Bills Digest replaces a preliminary Digest published on 9 February 2026 to assist in early consideration of the Bill.
Key points
The National Commission for Aboriginal and Torres Strait Islander Children and Young People (the NC) and the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People (the Commissioner) are key components of the Australian Government’s response to meeting commitments under the National Agreement on Closing the Gap.
Established initially as an Executive Agency, the NC has been operational since 13 January 2025.
The National Commission for Aboriginal and Torres Strait Islander Children and Young People Bill 2026 (the Bill) establishes the NC as a Statutory Agency and the Commissioner as a statutory officer, with functions and powers to advance the interests of Aboriginal and Torres Strait Islander children and young people.
The National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Bill 2026 (the Transitional Bill) facilitates the transition from an Executive Agency to a Statutory Agency.
Significant statutory functions would include conducting inquiries and making recommendations. The NC may then request persons or bodies to provide a response to recommendations. However, some comparable commissioners in other jurisdictions appear to have more scope to require responses from some stakeholders.
The NC can require a person to provide information, documents, or appear before the NC to answer questions, with non-compliance subject to civil penalties.
The NC would also be empowered to provide advisory services on matters affecting Aboriginal and Torres Strait Islander children and young people to non-government clients on a fee-for-service basis. This is a novel role without significant precedents or comparators in the Commonwealth.
At the time of writing, the Bills had not been referred to a committee for inquiry. The Senate Scrutiny of Bills Committee raised concerns with the Bill relating to privacy; the abrogation of the privilege against self-incrimination; immunity from civil and criminal liability for the NC and staff; and the incorporation of external materials into rules made under the Bill. The Committee has sought advice from the Minister on these matters.
Introductory Info
Date of introduction: 5 February 2026
House introduced in: House of Representatives
Portfolio: Social Services
Commencement: 1 July 2026, if Royal Assent is received prior to that date, otherwise on the earlier of proclamation or 6 months after Royal Assent. The Transitional Bill will commence at the same time but will not commence unless the Bill commences.
Purpose of the Bill
The purpose of the National Commission for Aboriginal and Torres Strait Islander Children and Young People Bill 2026 (the Bill) is to establish the National Commission for Aboriginal and Torres Strait Islander Children and Young People (the NC) as a Statutory Agency and the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People (the Commissioner) as a statutory officer, with the functions and powers to advance the interests of Aboriginal and Torres Strait Islander children and young people.
The National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Bill 2026 (the Transitional Bill) deals with transitional matters arising from the enactment of the Bill to support the transition of the NC from an Executive Agency to a Statutory Agency.
Structure of the Bills
The Bill has 6 Parts.
Part 1 sets out general preliminary provisions dealing with matters such as commencement of the Bill when enacted, its objects, and definitions of terms used in the Bill.
Part 2 includes the Commissioner’s functions and powers, independent role, and selection and appointment provisions.
Part 3 establishes that the NC consists of the Commissioner, and the staff of the NC who will be engaged under the Public Service Act 1999. The Commissioner may be assisted by certain other people including consultants.
Part 4 outlines how the Commissioner and the NC may collect, use and disclose information.
Part 5 sets out regulatory powers relating to the enforcement of civil penalty provisions in Part 4.
Part 6 contains provisions about miscellaneous matters, including delegations, annual reports, rules made by the Minister, and the requirement for an independent review of the Bill.
The Transitional Bill deals with matters arising from the NC’s transition from an Executive Agency to a Statutory Agency.
Background
National Commission for Aboriginal and Torres Strait Islander Children and Young People
In the annual Closing the Gap speech in February 2024, the Prime Minister announced the establishment of a National Commissioner for Aboriginal and Torres Strait Islander Children and Young People (the Commissioner). The accompanying media release noted that:
Indigenous children are almost eleven times more likely to be in out-of-home care than non-Indigenous children. The National Commissioner will focus on working with First Nations people on evidence based programs and policies to turn those figures around.
Establishing the National Commissioner is the result of extensive discussions with the peak body, SNAICC - National Voice for our Children, which has been calling for an Aboriginal and Torres Strait Islander Children’s Commissioner for many years.
An interim Commissioner will be appointed mid-year and will work with the government and First Nations expert advisers to determine the powers, roles and functions of the National Commissioner, which will be established under legislation.
In October 2024, the Minister for Social Services, Amanda Rishworth, and the Minister for Indigenous Australians, Malarndirri McCarthy, announced the establishment of the National Commission for Aboriginal and Torres Strait Islander Children and Young People, as an Executive Agency under the Public Service Act 1999. The NC was established by Order of the Governor-General, commencing 13 January 2025. In August 2025, Ministers Rishworth and McCarthy announced that Sue-Anne Hunter had been appointed to the role of Commissioner and would succeed Acting Commissioner, Lil Gordon, later that year.
According to the Bill’s Explanatory Memorandum (p. 1) the NC and the Commissioner are key components of the Australian Government’s response to meeting commitments under the National Agreement on Closing the Gap. Nine Closing the Gap Targets specifically mention children and/or young people, with most other Targets also relevant.
The Explanatory Memorandum notes that:
It is anticipated that the National Commissioner will focus on areas where progress towards Closing the Gap targets has not been realised or is going backwards, such as out-of-home care and youth justice.
First Nations children and young people are more than 10 times more likely to be in out-of-home care compared to non-Indigenous children and 27 times more likely to be in youth detention. Currently, no accountability mechanism has all three of the following elements: appropriate statutory powers, Aboriginal and Torres Strait Islander focus, and independence. (p. 67)
In her second reading speech, the Minister for Social Services stated that ‘We know that the Closing the Gap targets relating to development, child protection, safety and justice are off track.’ Closing the Gap Targets 11 and 12 seek to reduce the overrepresentation of Aboriginal and Torres Strait Islander children and young people in the child protection and criminal justice systems.
Additionally, the National Indigenous Australians Agency (NIAA) has described the establishment of this position as ‘demonstrating [Closing the Gap] Priority Reform Three in action with the Commonwealth responding to First Nations peoples who have been calling for a dedicated National Commissioner for many years’. Priority Reform 3 commits governments to ‘systemic and structural transformation of mainstream government organisations to improve accountability and respond to the needs of Aboriginal and Torres Strait Islander people’.
The establishment of the NC and the role of Commissioner are also in line with the Aboriginal and Torres Strait Islander First Action Plan 2023-2026 (Action 7, pp. 42-44) under Safe and Supported: the National Framework for Protecting Australia’s Children 2021-2031 (Safe and Supported).
Currently, the NC’s functions are to:
promote and protect the rights of Aboriginal and Torres Strait Islander children and young people through strategic policy advice and reports to government on matters affecting Aboriginal and Torres Strait Islander children and young people, and their families
provide advice to Government on and inform the implementation of key policy frameworks which seek to improve outcomes for Aboriginal and Torres Strait Islander children and young people and their families
promote and enhance coordination across Commonwealth and state and territory governments, commissioners, guardians and advocates and non-government organisations on matters related to Aboriginal and Torres Strait Islander children and young people
undertake consultation with Aboriginal and Torres Strait Islander children and young people and their families, relevant Commonwealth and state and territory governments, commissioners, guardians and advocates and non-government organisations
ensure the voices of Aboriginal and Torres Strait Islander children and young people and their families are reflected in advice to government.
The 2024-25 Budget included the measure ‘National Commissioner for Aboriginal and Torres Strait Islander Children and Young People’, providing funding of $5.9 million over 2 years from 2024-25 to establish interim arrangements for the Commissioner. The Government also noted that this measure would require legislation (Australian Government, Budget measures: Budget paper no. 2: 2024-25, p. 171). In the second reading speech for the Bill the Minister advised that the Government was ‘investing a total of $33½ million over the four years from 2025-26 and $8.4 million a year ongoing to support the commission's operation’.
State/Territory Commissioners for Aboriginal and Torres Strait Islander Children
Under Australia's 10-year national framework for child and family wellbeing, Safe and Supported, all state and territory governments have committed to establish an independent commissioner for Aboriginal and Torres Strait Islander children (Aboriginal and Torres Strait Islander First Action Plan 2023-26, Action 7, pp. 42-44). Jurisdictions differ in the extent of their progress toward this objective, and in the specific arrangements for their commissioner.
Designated commissioners have been established in legislation and appointed in South Australia (2018) and the ACT (2022-23). Following the recent passage of legislation, Tasmania’s Commissioner for Children and Young People will be supported by a Commissioner for Aboriginal Children and Young People.
In Queensland (2025, pp. 6, 109) the Family and Child Commission Act 2014 establishes a principal commissioner and another commissioner who must be Indigenous. In Victoria (2013) the Commissioner for Aboriginal Children and Young People (CACYP) is an ‘additional commissioner’ under the Commission for Children and Young People Act 2012 (CCYP Act). The Yoorook Justice Commission recommended that the CCYP Act be amended to formally establish the CACYP position and clarify the extent of its functions (recommendation 7).
Three jurisdictions - New South Wales, the Northern Territory, and Western Australia - have not commenced processes to establish dedicated commissioner positions, despite agitation by some stakeholders. These concerns are discussed by SNAICC in their recent jurisdiction reviews of the implementation of the Aboriginal and Torres Strait Islander Child Placement Principle: Western Australia, pp. 15, 25; New South Wales, pp. 22-23; Northern Territory, pp. 17, 27.
Minimum Requirements for Aboriginal and Torres Strait Islander Children’s Commissioners
A commitment under the Safe and Supported framework is the development of Minimum Requirements for Aboriginal and Torres Strait Islander Children’s Commissioners (Action 7, Aboriginal and Torres Strait Islander First Action Plan 2023-2026, pp. 42-44).
The Library has not located a copy of the Minimum Requirements. However, Minimum Requirements were endorsed by the Commonwealth, the Safe and Supported Aboriginal and Torres Strait Islander Leadership Group and some states and territories at the October 2025 Safe and Supported Shared Decision-Making Committee Meeting:
… The Minimum Requirements are intended to guide the work of jurisdictions to ensure that Commissioners for Aboriginal and Torres Strait Islander children and young people are independent, effective and appropriately empowered.
The Committee discussed how each state and territory government is working to establish or strengthen Aboriginal and Torres Strait Islander Children’s Commissioners, or similar roles, for Aboriginal and Torres Strait Islander children and young people. …
According to the Explanatory Memorandum, these Minimum Requirements are ‘embedded in the Bill’ (p. 6).
Stakeholder advocacy
The Explanatory Memorandum states that ‘[p]eak bodies have called for stronger oversight, accountability and self-determination, since, at least, the 1980s’ and that ‘[s]takeholders have emphasised the urgent need for a dedicated, permanent National Commissioner established in its own legislation to drive sustained systemic reform, which protects the rights and centres the voices and experiences of Aboriginal and Torres Strait Islander children and young people’ (pp. 3-4).
In October 2019, SNAICC, the national community-controlled peak body organisation for Aboriginal and Torres Strait Islander children and families, published a position paper for the ‘Establishment of a national commissioner for Aboriginal and Torres Strait Islander children and young people.’ The position paper included the endorsement of over 70 organisations, as well as many of the then-children’s commissioners and guardians across Australia (pp. 2-3).
This was followed by a desktop review of existing Australian and international commissioner models and the publication of an Options Paper: Models for a National Commissioner for Aboriginal and Torres Strait Islander Children and Young People in December 2020. The paper included detailed recommendations for key requirements for a proposed model for a NC (summarised on pp. 75-78).
In January 2023, following their first meeting as a group, the Australian First Nations Children’s Commissioners, Guardians and Advocates published a statement that identified ‘11 advocacy priorities’, including:
Advocate for, and support the introduction of, a National Commissioner to advance the rights of Aboriginal and Torres Strait Islander children across Australia, in collaboration with jurisdictional first nations Commissioners, Guardians and Advocates. Promote the need for consistency of independence, powers and commensurate resourcing for dedicated Commissioners and Guardians for Aboriginal and Torres Strait Islander children in each jurisdiction.
Source: Statement from Australian First Nations Children’s Commissioners, Guardians and Advocates - 10 and 11 January 2023, First Nations children's commissioners, guardians release national priorities - Commissioner for Aboriginal Children and Young People (media release, 8 Feb 2023).
SNAICC’s Family Matters Report 2023 reiterated this:
It is time to establish a National Commissioner for Aboriginal and Torres Strait Islander Children, who will be the champion, the voice and facilitator for our children, young people and families, and who will hold governments to account. Similar independent and empowered roles must be present in every jurisdiction, providing a national system of oversight to uphold the rights and interests of our children.
We need independent scrutiny of the systems that intervene in our children’s and families’ lives. Periodic reviews through inquiries and Royal Commissions have produced extensive reports and recommendations about the dimensions of these challenges, but little action from governments once the inquiry wraps. (p. 5)
On the tabling of the current Bills, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Katie Kiss, and National Children’s Commissioner, Deb Tsorbaris, noted that while ‘the powers outlined in the bill will be similar to other national commissioners, guardians and advocates, … this role is the only one at the national level with a sole focus on First Peoples children and young people’. Commissioner Kiss further commented that having ‘an independent and properly resourced agency and commissioner to focus on coordinating responses and advocating for a better future for our children and young people is extremely welcome and I look forward to the bill being enacted soon’.
Policy position of non-government parties/independents
The Bills were debated in the House of Representatives 10-11 February 2026, and passed on 11 February 2026, with Coalition and One Nation MPs voting against the Bills and Labor, Greens, Centre Alliance and the 10 independent MPs voting in support (Hansard - House of Representatives 10/02/2026, pp. 11-12 and 15-16).
Against the Bills
Reasons given by MPs for not supporting the Bills included that:
it creates another bureaucracy (Bell; Wilson; McCormack)
It will cost $33.5 million over the forward estimates, and it adds yet another layer of bureaucracy on top of a system already saturated with commissions, councils, working groups, peak bodies, statutory offices and advisory structures. This is just another expansion of the Albanese Labor government's big government policy. (Bell)
the Commission duplicates existing structures (Bell; Wilson; McCormack)
This body duplicates existing roles and function. It duplicates the work of the National Children's Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the multiple Indigenous-specific children's commissioners already operating in the ACT, in Queensland, in South Australia and in Victoria. It overlaps with the Department of Social Services, which is already required to consult children and young people. It holds few functions not shared by state and territory child protection, education, youth justice and health agencies, where the real levers sit and which states and territories control. … The government says the commissioner will coordinate the efforts of states and territories, yet the bill offers no explanation of what powers or mechanisms the commissioner has to do so. … (Bell)
it shifts accountability away from Government and the responsible Minister (Bell; McCormack)
we are seeing a constant decay and erosion of responsibilities that once lay firmly and squarely and fairly with a minister. Under the Westminster system, ministers carry a lot of responsibility, as they should, and ministers are elected and then appointed by prime ministers through the cabinet process. They wear that responsibility not just as a badge of honour but as a duty to improving the outcomes and the futures of Australians. If we as a parliament keep watering down that level of responsibility by people who are ministers of the Crown, then what we're doing is just giving rubber stamp value to the role that they play. ... (McCormack)
it is Canberra-centric and diverts funding away from frontline needs (Bell; Price):
The cost of this commission, I will reiterate, is $33.51 million over the forward estimates and $9.33 million ongoing. The funding could instead support dozens and dozens of remote school attendance programs, fund additional child protection workers in crisis-level regions, strengthen domestic violence interventions, support alcohol restrictions and community safety plans, or provide early developmental support for vulnerable children. (Bell)
….we will always prioritise practical actions over symbolic gestures. … please drop the symbolism, the egos and the lack of detail. (Price)
Extent of consultation
During the debate, Angie Bell questioned whether the consultation had been as extensive as claimed in the Explanatory Memorandum and the Minister’s Second Reading Speech. The Explanatory Memorandum states that the Bill '… has been informed by in-depth consultations since 2023, including with State and Territory Children’s Commissioners, Guardians, Advocates, peak organisations, an Aboriginal and Torres Strait Islander youth advisory group, and Aboriginal Community Controlled Organisations’ (p. 5).
Information about the development of position papers and research into options for a national commissioner role is included in the Background section of this digest, under stakeholder advocacy.
In favour of the Bills
Commentary made in support of the Bills by independent MPs included:
Kate Chaney, who noted that establishing the Commission as a statutory body is ‘a promise [from 2 years ago] being honoured’ and that ‘[i]ndependence is not symbolic; it's essential’ so that the Commission can hold Government to account, and advocate ‘without fear or favour’, observing that ‘ … [u]nfortunately, we have a long history of mostly well-intentioned but ultimately ineffective and sometimes damaging policy, and we need independent voices that can call this out’.
Zali Stegall, who noted that ‘[t]he problems the commission will address are structural and inter-generational, and they cannot be solved on a short timeframe …’ and that other commitments are needed to complement and support the Commission’s role, including ‘a national commitment to raise the minimum age of criminal responsibility to at least 14’ and ‘a national rights-of-the-child framework’ that can support a nationally consistent approach to upholding Australia’s ratification of the UN Convention on the Rights of the Child.
Allegra Spender, who acknowledged the ‘decades of advocacy from Aboriginal and Torres Strait Islander leaders, elders and organisations who have fought tirelessly for their children and for future generations’, especially noting SNAICC’s longstanding advocacy in this area. Ms Spender also urged the government ‘to commit to clear timelines for responding to the commission's reports and inquiries, and to set out transparent implementation pathways for the recommendations that follow.’
Andrew Gee, who expressed disappointment that ‘no meaningful policies’ had been provided by those criticising the Bills.
Key issues and provisions
Establishment as a Statutory Agency
As noted above, the NC was established in January 2025 as an Executive Agency by an Order of the Governor-General under section 65 of the Public Service Act 1999 (PS Act). Clause 33 provides for the continued existence of the NC but changes the basis of its establishment from an Executive Agency to a Statutory Agency.
For more information about the features of various corporate forms, a Department of Finance webpage classifies Commonwealth entities into 13 categories and describes key characteristics of each category. A Parliamentary Library Quick Guide summarises Finance guidance on this topic.
As discussed below, the change from an Executive Agency to a Statutory Agency will not substantially alter the existing operational arrangements for the NC. A main difference will be that, as a statutory office holder, the Commissioner will have a higher degree of independence and discretion in the performance and exercise of their statutory functions and powers.
Another difference is that establishment of the Commissioner as a statutory officer holder enables the Parliament to prescribe in legislation aspects of the selection process that would otherwise be at the discretion of the Minister.
In addition, as a Statutory Agency, the creation, abolition and definition of the roles of the NC would be prerogatives of the Parliament, rather than of the Governor-General acting on the advice of the Government.
The Transitional Bill addresses mechanical aspects of the change from an Executive Agency to a Statutory Agency. The Explanatory Memorandum notes that:
Schedule 1 to the Transitional Bill provides for application, saving and transitional provisions to ensure that the National Commission as a Statutory Agency under the principal Act is a continuation of the Executive Agency. Among other things, this allows the work of the National Commission to continue unimpeded and the appointment of the National Commissioner and engagement of other APS employees and contractors to continue. (p. 7)
Selection, appointment, resignation, termination, remuneration
Clause 24 provides for the appointment of the Commissioner. Provisions relating to the period of office, reappointment, and determination of remuneration are typical for statutory office holder positions. The Commissioner will be appointed on a full-time basis for a term specified in the instrument of appointment (which must not exceed 5 years) and may be reappointed but must not hold office for periods totalling more than 7 years.
Subclause 24(5) specifies criteria for the Commissioner’s appointment and selection. Before appointing a person to the office, the Minister must be satisfied that the person is an Aboriginal person and/or Torres Strait Islander, identifies as such, is accepted by the person’s community as being an Aboriginal person and/or Torres Strait Islander; and has significant experience in community life of Aboriginal persons and/or Torres Strait Islanders. There are some precedents where legislation specifying that appointees to statutory officer holder positions must be Indigenous, or an Aboriginal person and/or Torres Strait Islander. Examples include subsection 7(3) of the Australian Heritage Council Act 2003 and subsections 12(1) and 12(1A) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989.
Subclause 24(6) requires that Aboriginal people and Torres Strait Islanders and their communities must be involved in designing the selection process, which must be designed having regard to the interests and needs of Aboriginal and Torres Strait Islander children and young people. The Explanatory Memorandum notes that the Minister would not be precluded from also seeking advice about the selection process from their department (p. 27).
Subclause 24(6) requires that the process must be merit-based and must include public advertising of the position. These arrangements are consistent with Appointment Principles in the Australian Government Appointments Framework.
The provisions for resignation (clause 29) and termination (clause 30) are typical for statutory officer holder positions.
Clause 25 provides that the Commissioner’s remuneration would be determined by the Remuneration Tribunal. A determination would be a disallowable instrument required to be tabled in both Houses of Parliament. Either House may disallow the determination within 15 sitting days of its tabling. If no determination by the Tribunal is in operation, the Commissioner is to be paid the remuneration prescribed by the rules (rules are provided for in subclause 65(1)).
Staff
Provisions relating to staffing are typical for statutory agencies. The NC’s function is to assist the Commissioner in performing functions (clause 34).
Clause 35 provides that the Commissioner will be the Agency Head for the purposes of section 7 of the PS Act and will have, under section 20 of the PS Act and on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in the Agency.
Clause 35 also requires that the staff of the NC are persons engaged under the PS Act. Clause 36 provides that the Commissioner may be assisted by staff made available by Commonwealth, state or territory entities. Clause 37 provides that the Commissioner may, on behalf of the Commonwealth, engage consultants.
Accountability under the PGPA Act
Subclause 33(3) provides that, for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commissioner is the accountable authority of the NC, which will continue to be a non-corporate Commonwealth entity (NCE) and a listed entity. The officials of the NC are the Commissioner, the staff of the NC, persons assisting the Commissioner under subclause 36(1), and any consultants engaged under clause 37.
General functions and powers
Subclause 11(1) identifies the Commissioner’s general functions, which include to:
promote, and enhance coordination among Australian government entities and officials of, efforts to identify and recommend solutions to systemic issues that affect the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people;
provide advice to the Commonwealth on matters affecting Aboriginal and Torres Strait Islander children and young people, in relation to developing and delivering policies, programs and services;
undertake and commission research into systemic issues and barriers that affect the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people, including as a result of regulatory activities and the developing and delivering of policies, programs and services;
provide and commission educational programs for Aboriginal and Torres Strait Islander children and young people with the goal of empowering them to promote, and to advocate for the incorporation of, their views, needs and experiences on matters that affect them in the development and delivery of policies and programs by, and advice to, the Commonwealth;
undertake public advocacy to promote the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people, and to amplify their voices and strengths; and
engage with a broad range of Aboriginal and Torres Strait Islander children and young people throughout Australia, including in remote areas, and those living with a disability, and to support them to understand and assert their rights, agency and leadership.
Subclause 11(2) sets out other functions of the Commissioner including conducting research and inquiries, accepting referrals, providing advisory services and collaborating with other organisations and institutions in matters relating to the Commissioner’s general functions.
A note under clause 11 clarifies that, while the Commissioner’s functions ‘are primarily directed at systemic issues’, the Commissioner ‘may refer individual complaints to another Australian government entity or official’.
Clause 12 provides that the Commissioner has the power to do all things necessary or convenient to be done for or in connection with the Commissioner’s performance of functions, which are to be exercised in accordance with general principles outlined in clause14, including that the powers are exercised in the best interests of Aboriginal and Torres Strait Islander children and young people, in a manner that protects and promotes cultural identity and development, and in a manner consistent with international human rights principles and obligations.
Clause 15 provides that the Commissioner has ‘complete discretion in performing functions and exercising powers’ and ‘is not subject to direction by any person in relation to performing functions or exercising powers’. In particular, to avoid doubt, this clause clarifies that the Commissioner may publicise any matter relating to the Commissioner’s functions in any way the Commissioner ‘thinks appropriate’. Further, clause 58 provides that the Commissioner and staff of the NC will ‘not be liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the performance or purported performance, or exercise or purported exercise, of a function or power conferred’ under the Bill.
Inquiries, recommendations and referrals
According to the Explanatory Memorandum, a key objective of the Bill is to ‘drive greater accountability for government policies, programs and services that impact Aboriginal and Torres Strait Islander children and young people to enable better outcomes’ (p. 5). The Commissioner’s ability to conduct inquiries and make recommendations is one aspect which is intended to give effect to this objective. However, with respect to the Commissioner’s ability to promote compliance with their recommendations, relevant provisions in the Bill differ from those for state/territory commissioners.
Subclause 17(1) provides the Commissioner may conduct research and inquire into matters pertaining to the Commissioner’s general functions (set out in clause 11). After conducting research or inquiring into matters under clause 17, the Commissioner may make written recommendations, including that a person or body take a specified course of action (subclause 17(3)). The Commissioner may then request, by written notice, that the person or body give the Commissioner a response to the recommendation before taking action (subclause 17(4)).
Other jurisdictions have sought to ensure compliance and accountability by requiring that some categories of persons or bodies provide responses to their commissioners’ recommendations. For example, in the ACT the person in charge of an entity that has been given notice of its relevance to an inquiry must respond to the commissioner within a stated time (Aboriginal and Torres Strait Islander Children and Young People Commissioner Act 2022 (ACT), subsection 23(3)). In South Australia a State authority must respond to a relevant inquiry recommendation (Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA), subsections 20O(1)-(2)).
Advisory services to non-government clients
In addition to providing advice to the Commonwealth in accordance with paragraph 11(1)(b), subclause 23(1) would enable the NC to provide advisory services to any person or body on matters affecting Aboriginal and Torres Strait Islander children and young people, in relation to developing and delivering policies, programs and services.
The Explanatory Memorandum anticipates that, not being part of the NC’s work program, such requests for advisory services will require additional resources (p. 24). Subclause 23(2) provides that the Commissioner may, on behalf of the Commonwealth, charge fees for such advisory services.
As the accountable authority under the PGPA Act, the Commissioner’s governance of the NC must be not inconsistent with the Australian Government’s Charging Framework, which comprises the Australian Government Charging Policy and the Cost Recovery Policy. For the purposes of the Charging Framework the Commissioner’s advisory services would be non-regulatory activities, specifically the provision of specialist expertise.
Many Commonwealth entities publish Cost Recovery Implementation Statements (CRIS) in relation to their provision of services arising from their regulatory functions. Fewer Commonwealth entities provide non-regulatory fee-for-service advice to non-government clients. Those that do tend to provide technical and scientific advice - some examples include the National Measurement Institute (NMI) and the Bureau of Meteorology. Australian Government Consulting (AGC) is a management consultancy operated by the Australian Public Service (APS). AGC’s client base is limited to Australian Government organisations.
In that context, it would appear that, in providing advisory services on matters affecting Aboriginal and Torres Strait Islander children and young people to non-government clients on a fee-for-service basis, the Commissioner will be undertaking a novel role without significant precedents or comparators.
Information-gathering powers
Like comparable commissioners in the ACT and South Australia, the Commissioner will have significant information gathering powers with human rights implications. Under clause 39, where the Commissioner ‘reasonably believes’ a person has, or could take reasonable steps to obtain, information or documents relevant to the Commissioner’s functions, the Commissioner may, by written notice, require a person to provide information, documents, or appear before the Commissioner to answer questions at the time and in the manner specified in the notice.
Failure to comply with a notice issued by the Commissioner under clause 39 attracts a maximum civil penalty of 30 penalty units (currently $9,900) (clause 41), as does a refusal or failure to answer a question put by the Commissioner when appearing before them as required by a notice under clause 39 (paragraph 43(3)(c)). An exception to these penalty provisions applies if the person has a reasonable excuse (a defendant bears the evidential burden).
However, these penalty provisions will not apply to an Australian government entity or official. Further, a notice to an Australian government entity or official does not authorise the provision of personal information about an individual, unless the individual has consented to the use or disclosure of the information for that purpose (subclause 39(3)).
A person is not excused from providing information on the grounds of self-incrimination (subclause44(1)) or exposure to penalty (subclause 44(3)). However, the information given, and any information, document or thing obtained as a direct or indirect consequence, is not admissible in evidence against the individual in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code Act 1995 concerning provision of false or misleading information and documents) (paragraph44(2)).
Clause 56 provides that the civil penalty provisions above will be enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014. This provides the mechanism for the Commissioner (or other authorised applicants) to seek civil penalty orders from a relevant court in the relation to the contravention of the civil penalty provisions.
The Statement of Compatibility with Human Rights (the Statement) at the end of the Explanatory Memorandum argues that the information-gathering powers contained in the Bill are ‘critical’ to providing the Commissioner with the appropriate authority to ‘hold systems accountable’ (p. 72). The Statement also implies that the Commissioner’s focus on systemic issues rather than individual cases in conducting inquiries mitigates the impact of the information-gathering powers on individuals’ right to privacy (p. 72).
Use and disclosure of information
Clause 45 also creates an offence where an ‘entrusted person’ (the Commissioner, staff or consultants of the NC) uses or discloses protected information (which is protected personal information or information which has been obtained through the use of the information-gathering powers). The definition of protected personal information in subclause 46(6) covers the disclosure of personal information that would, or could be reasonably be expected to, cause a range of adverse outcomes. These include where disclosure would ‘endanger the safety of the individual’ or disclose the ‘existence or identity of a confidential source of information’. The maximum penalty for this offence is imprisonment for 1 year or 50 penalty units (currently $16,500), or both.
However, the above offence will not apply where the use or disclosure of information is authorised under Part 4, Division 4. This division contains a range of circumstances for the authorised use and disclosure of relevant information (information obtained or generated by a person, or a person assisting another person, in performing ‘functions or duties, or exercising powers, under or for the purposes of this Act’). For example, the authorised uses or disclosures of information include where the entrusted person is ‘performing functions or duties, or exercising powers’ under the legislation (clause 47) or where the entrusted person ‘reasonably believes’ disclosure is necessary to ‘lessen or prevent a threat to the life, health or safety’ of an Aboriginal or Torres Strait Islander child or young person or another person (clause 50).
Delegations
Clause 59 provides that the Minister may, in writing, delegate to an SES employee or acting SES employee in their department one or more of the Minister’s functions or powers under this Bill (other than the power to make rules under clause 65). The delegate must comply with any written directions of the Minister.
Clause 60 provides that the Commissioner may, in writing, delegate their functions or powers to a member of the NC’s staff, or an APS employee assisting under subclause 36(1), who is an SES or acting SES employee or classified as Executive Level 1 or higher (or acting in a position usually occupied by an APS employee who is so classified). As above, the delegate must comply with any written directions of the Commissioner.
Review
Clause 64 requires an independent review of the operation of the Bill to commence 3 years after its commencement, with the Minister required to table the report of the review in each House of Parliament. Where the report of the review sets out recommendations, within 6 months of receiving the report, the Minister must prepare a statement setting out the Commonwealth Government’s response to the recommendations and table it in each House of Parliament.
Rules
Clause 65 gives the Minister the power to make rules, by legislative instrument, prescribing matters that the Bill either requires or permits to be prescribed, or that are necessary or convenient for carrying out or giving effect to the Bill. This provision is typical for statutory agencies.
Links
The links to the Bills, the Explanatory Memoranda and second reading speeches can be found on the home page for the National Commission for Aboriginal and Torres Strait Islander Children and Young People Bill 2026 and the National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Bill 2026, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as of February 2026.
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer
Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the ParliamentaryLibrarian at webmanager@aph.gov.au. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.
National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026
No. 14, 2026
An Act about the National Commission for Aboriginal and Torres Strait Islander Children and Young People, and for related purposes
Contents
Part 1,Preliminary 2
Division 1,General 2
1 Short title 2
2 Commencement 2
3 Objects 3
4 Simplified outline of this Act 4
5 Definitions 4
Division 2,Application of this Act 6
6 Extension to external Territories 6
7 Act binds the Crown 6
8 Concurrent operation of State and Territory laws 6
Part 2,National Commissioner for Aboriginal and Torres Strait Islander Children and Young People 7
Division 1,Introduction 7
9 Simplified outline of this Part 7
Division 2,Functions, powers and independence 9
10 National Commissioner 9
11 Functions of National Commissioner 9
12 Powers of National Commissioner 11
13 Consultation when performing functions and exercising powers 11
14 General principles for performing functions and exercising powers 11
15 Independence of National Commissioner 12
16 Reports by National Commissioner 13
Division 3,Inquiries and referrals 14
17 Inquiry into matters relating to general functions 14
18 Minister may request inquiry 15
19 Referrals from other entities 15
20 Referral of matters to another entity 16
21 Rules 16
Division 4,Other functions 17
22 Contributing to inquiries into relevant legislation, policies and practices 17
23 Advisory services 17
Division 5,Appointment, terms and conditions, etc. 19
24 Appointment 19
25 Remuneration 20
26 Acting appointments 20
27 Leave of absence 21
28 Other paid work 21
29 Resignation 21
30 Termination of appointment 21
31 Other terms and conditions 22
Part 3,National Commission for Aboriginal and Torres Strait Islander Children and Young People 23
32 Simplified outline of this Part 23
33 National Commission 23
34 Function of the National Commission 24
35 Staff 24
36 Persons assisting 24
37 Consultants 25
Part 4,Obtaining, using and protecting information 26
Division 1,Introduction 26
38 Simplified outline of this Part 26
Division 2,Power to require information 27
39 National Commissioner may require information or documents 27
40 Contents of notice 27
41 Failing to comply with notice 28
42 Inspection and retention of documents 29
43 Answering questions in accordance with notice 30
44 Self‑incrimination etc. 30
Division 3,Protected information 32
45 Offence,using or disclosing protected information 32
46 Protected information not required to be disclosed 33
Division 4,Use and disclosure of relevant information 35
47 Use or disclosure for the purposes of this Act or other Acts 35
48 Disclosure to State or Territory government entity,information relating to Aboriginal and Torres Strait Islander children and young people 35
49 Disclosure to State or Territory government entity,inter‑governmental agreement 35
50 Disclosure to lessen or prevent a threat to life, health or safety 36
51 Disclosure for the purposes of law enforcement 36
52 Use or disclosure of statistics or publicly available information 37
53 Use or disclosure with consent or to related person 37
54 National Commissioner’s directions about use or disclosure 38
Part 5,Regulatory powers 39
55 Simplified outline of this Part 39
56 Civil penalty provisions 39
Part 6,Other matters 41
57 Simplified outline of this Part 41
58 Protection of National Commissioner etc. 41
59 Delegation by Minister 41
60 Delegation by National Commissioner 42
61 Annual report 42
62 Payment of fees by the Commonwealth 43
63 Rules,incorporation of matter in documents 44
64 Review of operation of this Act 44
65 Rules 45
National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026
No. 14, 2026
An Act about the National Commission for Aboriginal and Torres Strait Islander Children and Young People, and for related purposes
[Assented to 26 March 2026]
The Parliament of Australia enacts:
Part 1,Preliminary
Division 1,General
1 Short title
This Act is the National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
The whole of this Act
Either:
(a) if this Act receives the Royal Assent before 1 July 2026,1 July 2026; or
(b) otherwise,a single day to be fixed by Proclamation.
However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period.
1 July 2026
(paragraph (a) applies)
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Objects
(1) The objects of this Act are to:
(a) promote the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people, and acknowledge and build on their strengths; and
(b) improve development, safety and wellbeing outcomes for Aboriginal and Torres Strait Islander children and young people; and
(c) identify systemic issues and barriers to Aboriginal and Torres Strait Islander children and young people’s development, safety and wellbeing; and
(d) support Aboriginal and Torres Strait Islander children and young people to assert their own rights and interests and to raise awareness of their views, needs and experiences; and
(e) increase awareness of:
(i) Aboriginal and Torres Strait Islander children and young people’s rights, interests, views, needs and experiences; and
(ii) the importance of these factors in developing and delivering policies, programs and services that affect their lives; and
(f) drive greater accountability for the impact on, and for improving the outcomes for, Aboriginal and Torres Strait Islander children and young people, of government policies, programs and services.
(2) The objects of this Act relating to the rights, safety, development and wellbeing of Aboriginal and Torres Strait Islander children and young people are to be understood through, and achieved in a manner consistent with, the culture of the Aboriginal or Torres Strait Islander community or communities to which they belong.
(3) This Act is intended to enable special measures to be taken for the advancement and protection of Aboriginal persons and Torres Strait Islanders, particularly Aboriginal and Torres Strait Islander children and young people.
4 Simplified outline of this Act
This Act is about the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People.
The National Commissioner has functions that are directed at the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people.
This Act also continues in existence the National Commission for Aboriginal and Torres Strait Islander Children and Young People. The National Commission’s function is to assist the National Commissioner.
The National Commissioner may require a person to give information, produce documents and answer questions relevant to the National Commissioner’s performance of functions.
5 Definitions
In this Act:
Aboriginal and Torres Strait Islander children and young people means Aboriginal persons and Torres Strait Islanders who are under 25 years old.
Aboriginal person means a person of the Aboriginal race of Australia.
Australia, when used in a geographical sense, includes the external Territories.
Australian government entity or official means:
(a) a Commonwealth entity; or
(b) an official (within the meaning of the PGPA Act); or
(c) a State or Territory government entity; or
(d) an official of a State or Territory government entity.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commonwealth entity has the same meaning as in the PGPA Act.
entrusted person: see subsection 45(3).
general functions: see subsection 11(1).
National Commission means the National Commission for Aboriginal and Torres Strait Islander Children and Young People.
National Commissioner means the National Commissioner for Aboriginal and Torres Strait Islander Children and Young People.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
personal information has the same meaning as in the Privacy Act 1988.
PGPA Act means the Public Governance, Performance and Accountability Act 2013.
protected information: see subsection 45(4).
protected personal information: see subsection 45(6).
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant information: see subsection 45(5).
rules means rules made under section 65.
State or Territory government entity means:
(a) a Department of a State or Territory; or
(b) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.
Torres Strait Islander means a descendant of an Indigenous inhabitant of the Torres Strait Islands.
Division 2,Application of this Act
6 Extension to external Territories
This Act extends to the external Territories.
7 Act binds the Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
8 Concurrent operation of State and Territory laws
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
Part 2,National Commissioner for Aboriginal and Torres Strait Islander Children and Young People
Division 1,Introduction
9 Simplified outline of this Part
The National Commissioner for Aboriginal and Torres Strait Islander Children and Young People continues in existence.
The National Commissioner has functions that are directed at the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people. These functions broadly include:
(a) promoting and enhancing coordination of efforts to identify solutions to systemic issues; and
(b) advising the Commonwealth; and
(c) undertaking and commissioning research into systemic issues and barriers; and
(d) providing and commissioning educational programs; and
(e) undertaking public advocacy.
The National Commissioner also has the function of conducting inquiries into and making recommendations on matters relating to those functions, and may publish reports on inquiries conducted and on other matters.
The National Commissioner is generally not subject to direction by any person, and is to perform functions and exercise powers in a manner that promotes the best interests of Aboriginal and Torres Strait Islander children and young people, recognises the need to protect and promote their cultural identity and development, and is consistent with the promotion of human rights.
The National Commissioner must be an Aboriginal person and/or a Torres Strait Islander with significant experience in community life and who has been selected for appointment through a process that Aboriginal persons and Torres Strait Islanders are involved in designing.
Division 2,Functions, powers and independence
10 National Commissioner
The office of National Commissioner for Aboriginal and Torres Strait Islander Children and Young People continues in existence, by force of this section, under and subject to the provisions of this Act.
Note: Division 5 sets out provisions relating to the appointment and terms and conditions of the National Commissioner.
11 Functions of National Commissioner
(1) The National Commissioner has the following functions (the general functions):
(a) to promote, and enhance coordination among Australian government entities and officials of, efforts to identify and recommend solutions to systemic issues that affect the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people;
(b) to provide advice to the Commonwealth on matters affecting Aboriginal and Torres Strait Islander children and young people, in relation to developing and delivering policies, programs and services;
(c) to undertake and commission research into systemic issues and barriers that affect the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people, including as a result of regulatory activities and the developing and delivering of policies, programs and services;
(d) to provide and commission educational programs for Aboriginal and Torres Strait Islander children and young people with the goal of empowering them to promote, and to advocate for the incorporation of, their views, needs and experiences on matters that affect them in the development and delivery of policies and programs by, and advice to, the Commonwealth;
(e) to undertake public advocacy to promote the rights, interests, development, safety and wellbeing of Aboriginal and Torres Strait Islander children and young people, and to amplify their voices and strengths;
(f) to engage with a broad range of Aboriginal and Torres Strait Islander children and young people throughout Australia, including in remote areas, and to support them to understand and assert their rights, agency and leadership;
(g) any other function conferred on the National Commissioner by this Act or any other Act.
Note: Section 14 sets out general principles for the National Commissioner’s performance of functions.
(2) The National Commissioner also has the following functions:
(a) to conduct research and inquire into matters relating to, or for the purposes of, the general functions, and to make recommendations in relation to those matters, under section 17;
(b) to accept a referral of a matter relating to the general functions under section 19;
(c) to refer matters to another entity under section 20;
(d) to contribute to inquiries into matters relating to the general functions under section 22;
(e) to provide advisory services under section 23;
(f) to collaborate with the Australian Human Rights Commission and other organisations and institutions on matters relating to the general functions;
(g) to engage with international human rights mechanisms, including relevant United Nations bodies, rapporteurs and procedures, for the purposes of providing information, research or advice on matters relating to the general functions;
(h) anything incidental or conducive to the performance of any of the functions mentioned elsewhere in this section.
Note: The National Commissioner’s functions are primarily directed at systemic issues, but the National Commissioner may refer individual complaints to another Australian government entity or official: see section 20.
12 Powers of National Commissioner
The National Commissioner has power to do all things necessary or convenient to be done for or in connection with the National Commissioner’s performance of functions.
Note 1: Section 14 sets out general principles for the National Commissioner’s exercise of powers.
Note 2: The National Commissioner may require information or documents relevant to the National Commissioner’s performance of functions: see section 39.
13 Consultation when performing functions and exercising powers
The National Commissioner may consult with any person or body in performing functions or exercising powers.
14 General principles for performing functions and exercising powers
Best interests of Aboriginal and Torres Strait Islander children and young people
(1) It is the intention of the Parliament that the National Commissioner is to perform functions and exercise powers in a manner that promotes the best interests of Aboriginal and Torres Strait Islander children and young people.
Aboriginal and Torres Strait Islander cultural identity and development
(2) It is the intention of the Parliament that the National Commissioner is to perform functions and exercise powers in a manner that recognises the need to protect and promote the cultural identity and development of Aboriginal and Torres Strait Islander children and young people through maintaining and building their connections to their family and community.
International human rights
(3) It is the intention of the Parliament that the National Commissioner is to perform functions and exercise powers in a manner consistent with the promotion of the following:
(a) the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, being the Resolution adopted by the General Assembly of the United Nations on 13 September 2007;
(b) Australia’s obligations under the following:
(i) the Convention on the Rights of the Child done at New York on 20 November 1989;
(ii) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006;
(iii) any other relevant international instrument (within the meaning of the Australian Human Rights Commission Act 1986);
(iv) any other international agreement relating to human rights.
Note 1: The Declaration mentioned in paragraph (a) is set out in United Nations General Assembly Resolution 61/295, which in 2026 could be accessed through the United Nations’ website (https://www.un.org).
Note 2: The international agreements mentioned in subparagraphs (b)(i) and (ii) could in 2026 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
15 Independence of National Commissioner
(1) The National Commissioner:
(a) has complete discretion in performing functions and exercising powers; and
(b) is not subject to direction by any person in relation to performing functions or exercising powers.
(2) To avoid doubt, the National Commissioner may, in the course of performing functions and exercising powers, publicise any matter relating to the National Commissioner’s functions in any way the National Commissioner thinks appropriate.
(3) This section is subject to this Act and to other laws of the Commonwealth.
16 Reports by National Commissioner
(1) The National Commissioner may publish a report on any of the following as the National Commissioner sees fit:
(a) research and inquiries conducted under section 17;
(b) any other matter relating to the National Commissioner’s functions.
Reports may be given to Minister and tabled in Parliament
(2) The National Commissioner may give such a report to the Minister if the National Commissioner sees fit to do so.
(3) The Minister must cause a copy of any report given to the Minister under subsection (2) to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
Division 3,Inquiries and referrals
17 Inquiry into matters relating to general functions
(1) The National Commissioner may conduct research and inquire into matters relating to, or for the purposes of, the general functions.
Note 1: The National Commissioner may require information or documents for this purpose: see section 39.
Note 2: The National Commissioner may publish reports on the research and inquiries: see section 16.
(2) Without limiting subsection (1), the National Commissioner may conduct research and inquire into the following matters:
(a) systemic issues that affect, or may affect, the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people;
(b) matters in a request from the Minister that is accepted by the National Commissioner under section 18;
(c) matters in a referral that is accepted by the National Commissioner under section 19.
Recommendations
(3) The National Commissioner may, in writing, make recommendations after conducting research or inquiring into matters under this section, including recommending that a person or body take a specified course of action.
Note: The National Commissioner may do so in a report published under section 16.
(4) If the National Commissioner recommends that a person or body take a specified course of action, the National Commissioner may, by written notice, request the person or body to give the National Commissioner a response to the recommendation before taking the action.
18 Minister may request inquiry
(1) The Minister may, in writing, request the National Commissioner to conduct research and inquire into a matter relating to the general functions, including into systemic issues that affect, or may affect, the rights, interests, development, safety or wellbeing of Aboriginal and Torres Strait Islander children and young people.
(2) The National Commissioner may:
(a) accept the request, and conduct research or inquire into the matter under paragraph 17(2)(b); or
(b) decline the request.
Note: The National Commissioner must include details of requests received under this section, and reasons for declining requests, in the National Commission’s annual report: see section 61.
19 Referrals from other entities
The National Commissioner may, as the National Commissioner sees fit, accept a referral of a matter relating to the general functions if the referral is from one of the following:
(a) a Commissioner (however described) with responsibilities relating to children, appointed under a law of the Commonwealth or a State or Territory;
(b) a coroner;
(c) any other Australian government entity or official.
Note 1: A matter relating to the general functions may be referred to the National Commissioner in various circumstances, for example:
(a) a systemic barrier affecting the rights of Aboriginal and Torres Strait Islander children and young people may be identified by the National Children’s Commissioner as part of an investigation into a complaint and referred to the National Commissioner; and
(b) a matter requiring coordination of efforts among Australian government entities and officials to identify and recommend solutions to systemic issues to support the implementation of an intergovernmental agreement may be referred to the National Commissioner by one of those officials.
Note 2: The National Commissioner may conduct research or inquire into such a matter: see paragraph 17(2)(c).
20 Referral of matters to another entity
(1) The National Commissioner may, if appropriate, refer a matter relating to Aboriginal and Torres Strait Islander children and young people to any of the following:
(a) an Australian government entity or official with responsibility for the matter;
(b) any other entity that the National Commissioner is satisfied has responsibility or advocates for the matter.
Giving information
(2) The National Commissioner may give the entity to which the matter is referred any information or documents that:
(a) relate to the matter; and
(b) are in the National Commissioner’s possession or under the National Commissioner’s control.
21 Rules
(1) The rules may make provision in relation to the National Commissioner’s functions under this Division.
(2) Without limiting subsection (1), the rules may do the following:
(a) set out procedures that must be followed;
(b) specify time limits within which such procedures must be completed.
(3) Before making rules for the purposes of subsection (1), the Minister must consult the National Commissioner.
Division 4,Other functions
22 Contributing to inquiries into relevant legislation, policies and practices
(1) The National Commissioner may provide information to, make submissions or recommendations to, and otherwise contribute to the conduct of, inquiries into legislation, policies and practices.
(2) The National Commissioner may do so to the extent the legislation, policies and practices affect, or may impact, Aboriginal and Torres Strait Islander children and young people.
23 Advisory services
(1) The National Commissioner may provide advisory services to any person or body on matters affecting Aboriginal and Torres Strait Islander children and young people, in relation to developing and delivering policies, programs and services.
Note: The National Commissioner also has the function of providing, on the National Commissioner’s own initiative, advice on such matters to the Commonwealth: see paragraph 11(1)(b).
Fees for advisory services
(2) The National Commission may, on behalf of the Commonwealth, charge fees for providing advisory services under subsection (1).
Note: The Commonwealth is notionally liable to pay such a fee: see subsection 62(1).
(3) A fee charged under subsection (2):
(a) must not be such as to amount to taxation; and
(b) is a debt due to the Commonwealth; and
(c) is recoverable by the Commonwealth in a court of competent jurisdiction.
Note: The National Commissioner must include information about advisory services provided and fees charged under this section in the National Commission’s annual report: see section 61.
Division 5,Appointment, terms and conditions, etc.
24 Appointment
(1) The National Commissioner is to be appointed by the Minister by written instrument.
(2) The National Commissioner is to be appointed on a full‑time basis.
(3) The National Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
(4) The National Commissioner may be reappointed, but must not hold office for periods totalling more than 7 years.
Criteria for appointment and selection
(5) Before appointing a person as the National Commissioner, the Minister must be satisfied that the person:
(a) is an Aboriginal person and/or a Torres Strait Islander; and
(b) identifies as an Aboriginal person and/or a Torres Strait Islander; and
(c) is accepted by the person’s community as being an Aboriginal person and/or a Torres Strait Islander; and
(d) has significant experience in community life of Aboriginal persons and/or Torres Strait Islanders; and
(e) has been selected for appointment through a process that meets the conditions in subsection (6).
(6) The process for selecting the person for the appointment must meet the following conditions:
(a) Aboriginal persons and Torres Strait Islanders, and their communities, must be involved in designing the process;
(b) the process must be designed having regard to the interests and needs of Aboriginal and Torres Strait Islander children and young people;
(c) the process must:
(i) be merit‑based; and
(ii) include public advertising of the position.
25 Remuneration
(1) The National Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the National Commissioner is to be paid the remuneration that is prescribed by the rules.
(2) The National Commissioner is to be paid the allowances that are prescribed by the rules.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
26 Acting appointments
(1) The Minister may, by written instrument, appoint a person to act as the National Commissioner:
(a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the National Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
(2) The Minister must not appoint a person to act as the National Commissioner unless the Minister is satisfied that the person:
(a) is an Aboriginal person and/or a Torres Strait Islander; and
(b) identifies as an Aboriginal person and/or a Torres Strait Islander; and
(c) is accepted by the person’s community as being an Aboriginal person and/or a Torres Strait Islander.
27 Leave of absence
(1) The National Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the National Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
28 Other paid work
The National Commissioner must not engage in paid work outside the duties of the National Commissioner’s office without the Minister’s approval.
29 Resignation
(1) The National Commissioner may resign the National Commissioner’s appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
30 Termination of appointment
(1) The Minister may terminate the appointment of the National Commissioner:
(a) for misbehaviour; or
(b) if the National Commissioner is unable to perform the duties of the National Commissioner’s office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the National Commissioner if:
(a) the National Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with the National Commissioner’s creditors; or
(iv) makes an assignment of the National Commissioner’s remuneration for the benefit of the National Commissioner’s creditors; or
(b) the National Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the National Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the National Commissioner’s office (see section 28); or
(d) the National Commissioner fails, without reasonable excuse, to comply with section 29 of the PGPA Act (which deals with the duty to disclose interests) or rules made for the purposes of that section.
31 Other terms and conditions
The National Commissioner holds office on the terms and conditions (if any) that are determined by the Minister in relation to matters not covered by this Act or the rules.
Part 3,National Commission for Aboriginal and Torres Strait Islander Children and Young People
32 Simplified outline of this Part
The National Commission for Aboriginal and Torres Strait Islander Children and Young People continues in existence. The National Commission’s function is to assist the National Commissioner in performing functions.
The National Commission consists of the National Commissioner and the staff of the National Commission. The National Commissioner may be assisted by other persons, including consultants engaged for that purpose.
33 National Commission
(1) The National Commission for Aboriginal and Torres Strait Islander Children and Young People continues in existence, by force of this subsection, under and subject to the provisions of this Act.
(2) The National Commission consists of:
(a) the National Commissioner; and
(b) the staff of the National Commission.
(3) For the purposes of the finance law (within the meaning of the PGPA Act):
(a) the National Commission is a listed entity; and
(b) the National Commissioner is the accountable authority of the National Commission; and
(c) the following persons are officials of the National Commission:
(i) the National Commissioner;
(ii) the staff of the National Commission;
(iii) persons assisting the National Commissioner under subsection 36(1);
(iv) consultants engaged under section 37; and
(d) the purposes of the National Commission include:
(i) the functions of the National Commissioner referred to in section 11; and
(ii) the function of the National Commission referred to in section 34.
34 Function of the National Commission
The National Commission’s function is to assist the National Commissioner in performing functions.
35 Staff
(1) The staff of the National Commission must be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the National Commissioner and the staff of the National Commission together constitute a Statutory Agency; and
(b) the National Commissioner is the Head of that Statutory Agency.
36 Persons assisting
(1) The National Commissioner may be assisted by:
(a) officers and employees of Agencies (within the meaning of the Public Service Act 1999), and of authorities of the Commonwealth, whose services are made available to the National Commissioner in connection with performing any of the National Commissioner’s functions; and
(b) persons whose services are made available under arrangements made under subsection (2).
(2) The National Commissioner may, on behalf of the Commonwealth, make an arrangement with the appropriate authority or officer of a State or Territory government entity under which the entity makes officers or employees available to the National Commissioner to perform services in connection with performing any of the National Commissioner’s functions.
(3) An arrangement under subsection (2) may provide for the Commonwealth to reimburse a State or Territory with respect to the services of a person to whom the arrangement relates.
(4) When performing services for the National Commissioner under this section, a person is subject to the directions of the National Commissioner.
37 Consultants
(1) The National Commissioner may, on behalf of the Commonwealth, engage consultants to assist the National Commissioner in performing functions.
(2) When assisting the National Commissioner in performing functions under this section, a person is subject to the directions of the National Commissioner.
Part 4,Obtaining, using and protecting information
Division 1,Introduction
38 Simplified outline of this Part
The National Commissioner may require a person to give information, produce documents and answer questions relevant to the National Commissioner’s performance of functions.
An entrusted person must generally not use or disclose protected information except as authorised.
An entrusted person is not generally required to produce or disclose protected information to other persons unless this is necessary for the purposes of an Act.
Entrusted persons are authorised to use and disclose relevant information in various circumstances.
Division 2,Power to require information
39 National Commissioner may require information or documents
(1) This section applies if the National Commissioner reasonably believes that a person has, or could take reasonable steps to obtain, information or documents relevant to the National Commissioner’s performance of functions.
(2) The National Commissioner may give the person a written notice that requires the person to do one or more of the things mentioned in subsection 40(1) (give specified information, produce specified documents or appear to answer questions).
Note: Failing to comply with a notice given to a person may result in a civil penalty: see section 41.
Notice does not authorise government entity or official to provide personal information
(3) A notice given to an Australian government entity or official does not authorise the provision of personal information about an individual, other than if the individual has consented to the use or disclosure of the information for that purpose.
Note: If the notice requires the production of a document containing personal information, the person complies with the notice by producing a copy of the document with that information deleted.
40 Contents of notice
(1) A notice given under section 39 may require a person to do the following:
(a) give information specified in the notice to the National Commissioner within the period and in the manner specified in the notice;
(b) produce documents specified in the notice to the National Commissioner within the period and in the manner specified in the notice;
(c) if the person is an individual,appear before the National Commissioner to answer questions at the time and in the manner specified in the notice;
(d) if the person is not an individual,cause a competent officer of the person to appear before the National Commissioner to answer questions at the time and in the manner specified in the notice.
Note: For paragraphs (c) and (d), the notice may, for example, specify that the person is to appear before the National Commissioner to answer questions:
(a) by attending in person at a specified physical location; or
(b) by using a specified technology.
(2) The notice must set out the effect of the following provisions:
(a) section 41;
(b) section 137.1 of the Criminal Code (about an offence for giving false or misleading information);
(c) section 137.2 of the Criminal Code (about an offence for producing false or misleading documents).
Minimum period for complying with notice
(3) A period specified under paragraph (1)(a) or (b) must end at least 14 days after the day the notice is given.
(4) A time specified under paragraph (1)(c) or (d) must be on a day that is at least 14 days after the day the notice is given.
41 Failing to comply with notice
(1) A person contravenes this subsection if:
(a) the person is given a notice under section 39; and
(b) the person is not an Australian government entity or official; and
(c) the person fails to comply with a requirement of the notice.
Civil penalty: 30 penalty units.
Exception,reasonable excuse
(2) However, subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
42 Inspection and retention of documents
(1) This section applies if a person produces a physical document under section 39.
National Commissioner may inspect and copy documents
(2) The National Commissioner may:
(a) inspect the document; and
(b) make and retain copies of the whole or a part of the document.
National Commissioner may retain documents
(3) The National Commissioner may take possession of the document and retain it for as long as is reasonably necessary.
Certified copy of documents
(4) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the National Commissioner to be a true copy.
(5) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(6) Until a certified copy is supplied, the National Commissioner must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of the whole or a part of the document.
43 Answering questions in accordance with notice
(1) This section applies if:
(a) the National Commissioner has given a notice under section 39; and
(b) the notice requires a person to appear before the National Commissioner in accordance with a requirement mentioned in paragraph 40(1)(c) or (d).
(2) The National Commissioner may require the person to answer questions orally or in writing.
Civil penalty
(3) A person contravenes this subsection if:
(a) the person appears before the National Commissioner in accordance with the requirement; and
(b) the recipient of the notice is not an Australian government entity or official; and
(c) the person refuses or fails to answer a question put by the National Commissioner.
Civil penalty: 30 penalty units.
Exception,reasonable excuse
(4) However, subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act.
44 Self‑incrimination etc.
(1) An individual is not excused from giving information, producing a document or answering a question under this Division on the ground that doing so might tend to incriminate the individual in relation to an offence.
Note: A body corporate is not entitled to claim the privilege against self‑incrimination.
(2) However:
(a) the information given, document produced or answer given; and
(b) the giving of the information, the production of the document or the answering of the question; and
(c) any information, document or thing obtained as a direct or indirect consequence of the giving of the information, the production of the document or the answering of the question;
are not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (about false or misleading information or documents) that relates to this Division.
(3) If, at general law, an individual would otherwise be able to claim the privilege against self‑exposure to a penalty (other than a penalty for an offence) in relation to giving information, producing a document or answering a question under this Division, the individual is not excused from doing so under this Division on that ground.
Note: A body corporate is not entitled to claim the privilege against self‑exposure to a penalty.
Division 3,Protected information
45 Offence,using or disclosing protected information
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) the person obtained or generated information in the person’s capacity as an entrusted person; and
(c) the information is protected information; and
(d) the person uses or discloses the protected information.
Penalty: Imprisonment for 1 year or 50 penalty units, or both.
Exception,authorised use or disclosure
(2) Subsection (1) does not apply if the use or disclosure of the protected information is authorised by or under Division 4.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Meaning of entrusted person
(3) Each of the following persons is an entrusted person:
(a) the National Commissioner;
(b) a member of the staff of the National Commission;
(c) a person assisting the National Commissioner under subsection 36(1);
(d) a consultant engaged under section 37.
Meaning of protected information
(4) Protected information is relevant information that is:
(a) information obtained by the National Commissioner under section 39 or 43; or
(b) protected personal information.
Meaning of relevant information
(5) Relevant information is information obtained or generated by a person in the course of or for the purposes of:
(a) performing functions or duties, or exercising powers, under or for the purposes of this Act; or
(b) assisting another person to perform functions or duties, or exercise powers, under or for the purposes of this Act.
Meaning of protected personal information
(6) Protected personal information is:
(a) personal information that if disclosed (whether alone or in conjunction with other information) would, or could reasonably be expected to:
(i) endanger the safety of the individual; or
(ii) cause harm to the individual’s physical or mental health; or
(iii) have a substantial adverse effect on the individual’s lawful business, professional, commercial or financial affairs; or
(iv) expose the individual to a substantial risk of being a victim of identity fraud; or
(b) information that if disclosed (whether alone or in conjunction with other information) would, or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law.
46 Protected information not required to be disclosed
(1) A person who is, or has been, an entrusted person must not be required to produce or disclose protected information to a court, tribunal, authority or person (other than a parliament) that has the power to require the production of documents or the answering of questions.
(2) However, subsection (1) does not apply to the extent that the production or disclosure is necessary for the purposes of:
(a) this Act; or
(b) another Act or instrument made under an Act.
Division 4,Use and disclosure of relevant information
Note: The provisions in this Division provide an authorisation for the purposes of subsection 45(2), the Privacy Act 1988 and other laws.
47 Use or disclosure for the purposes of this Act or other Acts
(1) An entrusted person may use or disclose relevant information in the course of or for the purposes of:
(a) performing functions or duties, or exercising powers, under or in connection with this Act; or
(b) assisting another person to perform functions or duties, or exercise powers, under or in connection with this Act.
(2) An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of the administration of an Act (other than this Act).
48 Disclosure to State or Territory government entity,information relating to Aboriginal and Torres Strait Islander children and young people
The National Commissioner may disclose relevant information to a State or Territory government entity if:
(a) the information relates to Aboriginal and Torres Strait Islander children and young people; and
(b) the National Commissioner reasonably believes that disclosing the information:
(i) is necessary for the purposes of the administration of a law of a State or Territory; and
(ii) furthers or promotes the objects of this Act.
49 Disclosure to State or Territory government entity,inter‑governmental agreement
The National Commissioner may disclose relevant information to a State or Territory government entity if:
(a) the National Commissioner reasonably believes that disclosing the information is necessary:
(i) for the purposes of the administration of a law of a State or Territory; and
(ii) for the purposes of giving effect to an intergovernmental agreement on a matter of national significance; and
(b) the State or Territory government entity has undertaken not to use or further disclose the information except in accordance with an agreement that:
(i) is in force between the Commonwealth and the State or Territory; and
(ii) applies in relation to the information; and
(c) the National Commissioner is satisfied that the information will be used or further disclosed only in accordance with the agreement.
50 Disclosure to lessen or prevent a threat to life, health or safety
An entrusted person may disclose relevant information if the entrusted person reasonably believes that doing so is necessary to lessen or prevent a threat to the life, health or safety of:
(a) an Aboriginal or Torres Strait Islander child or young person; or
(b) any other person.
51 Disclosure for the purposes of law enforcement
(1) An entrusted person may disclose relevant information to a body mentioned in subsection (2) if:
(a) the entrusted person reasonably believes that disclosing the information is necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty; and
(b) the functions of the body include that enforcement.
(2) The bodies are the following:
(a) a Commonwealth entity;
(b) a State or Territory government entity;
(c) the Australian Federal Police;
(d) the police force or police service of a State or Territory.
Disclosure to State or Territory law enforcement bodies
(3) However, the entrusted person must not disclose the information to a body mentioned in paragraph (2)(b) or (d) unless:
(a) the entrusted person reasonably believes that disclosing the information is necessary for the purposes of giving effect to an intergovernmental agreement on a matter of national significance; and
(b) the body has undertaken not to use or further disclose the information except in accordance with an agreement that:
(i) is in force between the Commonwealth and the State or Territory; and
(ii) applies in relation to the information; and
(c) the entrusted person is satisfied that the information will be used or further disclosed only in accordance with that agreement.
52 Use or disclosure of statistics or publicly available information
An entrusted person may use or disclose relevant information if:
(a) the information is statistics that are not likely to enable the identification of a person; or
(b) the information has already been lawfully made available to the public.
53 Use or disclosure with consent or to related person
(1) An entrusted person may use or disclose relevant information that relates to a person if:
(a) the person has consented to the use or disclosure; and
(b) the use or disclosure is in accordance with that consent; and
(c) the entrusted person reasonably believes that the use or disclosure furthers or promotes the objects of this Act.
(2) An entrusted person may disclose relevant information to:
(a) the person to whom the information relates; or
(b) the person who provided the information.
54 National Commissioner’s directions about use or disclosure
(1) The National Commissioner may, in writing, make directions about the use or disclosure of relevant information by an entrusted person under this Division.
(2) An entrusted person must comply with any relevant direction made under subsection (1) when using or disclosing relevant information under this Division.
(3) A direction made under subsection (1) is not a legislative instrument.
Part 5,Regulatory powers
55 Simplified outline of this Part
Civil penalty orders may be sought under Part 4 of the Regulatory Powers Act from a relevant court in relation to contraventions of each civil penalty provision of this Act.
56 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions mentioned in subsection (1):
(a) the National Commissioner;
(b) an SES employee, or an acting SES employee, in the National Commission.
Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1), extends to every external Territory.
Liability of Crown
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1), does not make the Crown liable to be subject to civil proceedings for a contravention of a civil penalty provision.
(6) The protection in subsection (5) does not apply to an authority of the Crown.
Part 6,Other matters
57 Simplified outline of this Part
This Part contains miscellaneous provisions relating to the National Commissioner and the National Commission, including indemnity from liability and reporting requirements.
The Minister and the National Commissioner may delegate certain functions and powers under this Act.
There is to be a review of the operation of this Act.
The Minister may make rules for the purposes of this Act.
58 Protection of National Commissioner etc.
The following are not liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the performance or purported performance, or exercise or purported exercise, of a function or power conferred by this Act:
(a) the National Commissioner;
(b) a member of the staff of the National Commission;
(c) a person assisting the National Commissioner under subsection 36(1);
(d) a consultant engaged under section 37.
59 Delegation by Minister
(1) The Minister may, in writing, delegate to an SES employee, or acting SES employee, in the Department one or more of the Minister’s functions or powers under this Act (other than the power to make rules under section 65).
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister.
60 Delegation by National Commissioner
(1) The National Commissioner may, in writing, delegate the National Commissioner’s functions or powers under this Act to a member of the staff of the National Commission, or an APS employee assisting the National Commissioner under subsection 36(1), who is:
(a) an SES employee; or
(b) an acting SES employee; or
(c) classified as Executive Level 1 or higher; or
(d) acting in a position usually occupied by an APS employee who is so classified.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(2) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the National Commissioner.
61 Annual report
The annual report prepared by the National Commissioner and given to the Minister under section 46 of the PGPA Act for a period must include the following:
(a) details of each request received under section 18 (Minister may request inquiry) that the National Commissioner:
(i) accepted or declined during the period; or
(ii) had not decided to accept or decline as at the end of the period;
(b) if the National Commissioner declined one or more requests under section 18 (Minister may request inquiry) during the period,the National Commissioner’s reasons for declining each of those requests;
(c) for each fee charged during the period for the provision of advisory services, under subsection 23(2),the following details:
(i) the amount of the fee;
(ii) the entity to whom the services were provided;
(iii) the general subject of the services;
(d) details of each notice given under section 39 (National Commissioner may require information or documents) to which all of the following apply:
(i) it was given to an Australian government entity or official;
(ii) the Australian government entity or official did not comply with a requirement in the notice;
(iii) the non‑compliance started to occur during the period.
62 Payment of fees by the Commonwealth
(1) The Commonwealth is not liable to pay a fee that is payable under this Act. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such a fee.
(2) The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.
(3) Directions under subsection (2) have effect, and must be complied with, despite any other law of the Commonwealth.
(4) Directions under subsection (2) are not legislative instruments.
(5) In this subsection:
Commonwealth includes a Commonwealth entity that cannot be made liable to taxation by a law of the Commonwealth.
63 Rules,incorporation of matter in documents
(1) Despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(2) Subsection (1) applies even if the instrument or other writing was created for the purpose of being applied, adopted or incorporated by the rules.
(3) The Minister must ensure that an instrument or other writing is published on the Department’s website if:
(a) the instrument or other writing was created for the purpose of being applied, adopted or incorporated by the rules; and
(b) the rules make provision as mentioned in subsection (1) in relation to the instrument or other writing.
(4) To the extent that rules making provision as mentioned in subsection (1) constitutes a subdelegation of the Minister’s power to make rules under this Act, subsection (1) authorises that subdelegation.
64 Review of operation of this Act
(1) The Minister must cause an independent review to be conducted of the operation of this Act.
(2) Without limiting subsection (1), the review must consider the effectiveness of the National Commissioner’s functions and powers in achieving the objects of this Act.
Public consultation
(3) A review under subsection (1) must make provision for public consultation.
Timing of review
(4) The person conducting the review must commence the review as soon as practicable after the end of 3 years starting on the day this section commences.
Report
(5) The person conducting the review must give the Minister a written report of the review before the end of 9 months starting on the day the review commences.
(6) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Government response to recommendations
(7) If a report of the review sets out one or more recommendations to the Commonwealth Government:
(a) as soon as practicable after receiving the report, the Minister must cause to be prepared a statement setting out:
(i) the Commonwealth Government’s response to each of the recommendations; and
(ii) if the Commonwealth Government has not accepted a recommendation,the reasons for not accepting the recommendation; and
(b) within 6 months after receiving the report, the Minister must cause copies of the statement to be tabled in each House of the Parliament.
65 Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;