National Commission for Aboriginal and Torres Strait Islander Children and Young People (Transitional Provisions) Act 2026

NC Executive Agency is defined as the body known as the National Commission for Aboriginal and Torres Strait Islander Children and Young People that was established as an Executive Agency under section 65 of the Public Service Act 1999 before commencement. The definition cross-references the Order to Establish made on 26 September 2024. This is the predecessor agency that will be abolished when the new statutory commission comes into existence. The term matters because the Act treats it as the entity whose identity, staff, assets and obligations carry over.

Principal Act means the National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026. That Act is the primary regulatory framework establishing the Commission as a statutory authority, defining its functions, powers, governance, accountability and reporting obligations. This transitional Act is entirely dependent on the principal Act: if the principal Act does not commence, neither does this Act. The transitional Act uses definitions from the principal Act (item 1(2)) but only to the extent they are needed for the Schedule.

Continuity of appointment is a key concept. Item 2 provides that a person already appointed as Head of the NC Executive Agency continues in office as the National Commissioner under the principal Act. This is not a fresh appointment - it is a deemed continuation. The previous period served as Head counts toward the five-year maximum under section 24(4) of the principal Act. This prevents an incumbent from resetting the clock. Notably, item 2(3) provides that this occurs despite subsection 65(4) of the Public Service Act 1999, which would otherwise abolish the office of Head when the executive agency is abolished. This is a deliberate statutory override to avoid an inadvertent vacancy.

Listed entity refers to the entity identified in clause 12AA of Schedule 1 to the Public Governance, Performance and Accountability Rule 2014 as it stood immediately before commencement. Item 3 ensures that this listed entity continues in existence as the listed entity under subsection 33(3) of the principal Act, with its identity unaffected. This matters because listed entity status under the PGPA Rule carries specific governance and reporting obligations. The transitional provision avoids any need to re-list or re-establish the entity.

Statutory Agency taken to be continuation is another preservation concept. For the purposes of the Public Service Act 1999, the Statutory Agency created by section 35(2) of the principal Act is deemed the continuation of the former NC Executive Agency. This ensures that employment instruments, delegations, and internal administrative arrangements made by or on behalf of the former agency remain valid after commencement. The Act expressly provides that instruments and actions are not affected (items 4(2)(a) and (b)).

Transitional rules refer to the power in item 9 for the Minister to make legislative instruments prescribing matters required or convenient for carrying out the Act. The power is broad but subject to five express prohibitions: no offences, civil penalties, arrest/detention powers, entry/search/seizure powers, taxes, or appropriations; and the rules must not directly amend the text of this Act or the principal Act. This power allows the Minister to fill gaps without parliamentary amendment, but the limitations constrain the potential scope of ministerial discretion.

The Act directly affects four categories of persons and entities. First, the incumbent Head of the NC Executive Agency automatically becomes the National Commissioner. That individual’s term, conditions, and reappointment eligibility are governed by the deeming provisions in item 2. The person cannot bargain for a fresh term under the principal Act; the existing term runs its course. This affects the individual’s security of tenure and potential for reappointment - the period served as Head counts against the five year limit, meaning a person who served, say, three years as Head would have only two years remaining as Commissioner before reappointment becomes available, and then only for a maximum of another five years.

Second, APS employees in the NC Executive Agency automatically become APS employees in the new National Commission. Item 5 expressly disapplies section 72 of the Public Service Act 1999, which would normally require a formal transfer or appointment process. This means employees are not given an opt in or an opportunity to renegotiate terms. Their existing terms and conditions continue under the Public Service (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2024. For employees, there is no disruption, but also no fresh choice. Job functions, reporting lines, and location presumably remain unchanged, but the change of employer entity may have implications for long service leave accrual, superannuation arrangements, or future redundancy if the new commission restructures - though the continuity provisions are designed to prevent those discontinuities.

Third, consultants engaged by the former agency see their engagements automatically converted to engagements under section 37 of the principal Act. This affects their contractual counterparty and the statutory basis for their engagement, but the Act is silent on whether fee rates, scope, or duration automatically carry over. The engagement “continues in force (and may be dealt with)” - the phrase “may be dealt with” suggests the new Commissioner could vary or terminate the engagement subject to its terms. Consultants might face uncertainty if the principal Act imposes new procurement or conflict of interest rules that the former executive agency did not apply.

Fourth, the Minister is empowered to make transitional rules by legislative instrument (item 9). This affects the Minister’s administrative burden and creates potential for further downstream impacts on all other affected parties. The Minister can prescribe matters of a transitional nature, including saving and application provisions, but cannot create offences, civil penalties, or powers of entry/search/seizure. The use of a legislative instrument means the rules are disallowable and subject to parliamentary scrutiny, but they can be made quickly without amending primary legislation.

Other affected persons include anyone dealing with the former agency - for example, contractors, service recipients, or partner organisations. Items 3, 4, 7 and 8 ensure that instruments, contracts, information and documents remain valid and effective. A party who contracted with the NC Executive Agency does not need to novate the contract; the identity of the counterparty continues. Similarly, a person who provided information to the former agency will see that same information treated as relevant information under the principal Act, with whatever disclosure or use implications follow.

The Act imposes few positive duties, because its nature is saving and transitional rather than prescriptive. However, several duties and rights emerge from its provisions.

Duty to accept deemed appointment: The person who was Head of the NC Executive Agency becomes National Commissioner by operation of law. There is no provision allowing the person to decline the appointment or resign from it; the appointment continues in force. If the person wishes to cease, they would presumably need to resign under the terms of the principal Act. This is a right disguised as a compulsion - the person retains the right to resign, but cannot choose to remain as Head of the former agency because that office is abolished.

Right to continued employment: APS employees have the right to continue in the new Commission as APS employees without interruption. The note to item 5 references the Public Service Determination 2024, which continues to apply. This right is coupled with the duty to continue performing the same role - there is no right to renegotiate terms at the point of transition. Similarly, employees have the right not to be subject to section 72 of the Public Service Act 1999, which would have allowed a formal declaration that the employee is excess or requires transfer. By disapplying that section, the Act removes a potential redundancy claim that could arise from the abolition of the former agency.

Right to continue as listed entity: The listed entity under the PGPA Rule continues in existence. This preserves the entity’s legal status and its ability to hold assets, enter contracts, and be sued. The accountable authority and other officials of the entity are deemed to continue (item 3(2)). This avoids any argument that the entity ceased to exist and re-formed, which could have disrupted contracts or raised constitutional issues.

Duty of the Minister to make transitional rules (if needed): Item 9 is permissive, not mandatory - the Minister may make rules, not must. However, where a transitional issue arises that is not covered by items 2 to 8, the Minister has the discretion to address it. The duty is not positive, but if the Minister does make rules, they must comply with the five prohibitions in item 9(3). Those prohibitions function as rights for affected persons - no one can be subjected to an offence or civil penalty via transitional rules, and no new powers of arrest, entry, or seizure can be created.

Right to rely on pre-commencement instruments: A person who holds an instrument made by the former executive agency (e.g., a delegation, a direction, or a contract) can continue to rely on it after commencement because items 3(2) and 4(2) expressly preserve the continued operation and validity of those instruments. The new Commission cannot treat those instruments as void or expired simply because the legal form of the agency changed.

Right to possession of documents: Item 8 provides that documents in possession of the former agency remain in possession of the new Commission. A person who had a privacy or confidentiality interest in those documents does not gain a new right to retrieve them, but nor do they lose any existing rights - the continuity provision ensures the Commission holds them under the same legal regime as before, now subject to the principal Act’s definition of relevant information.

This Act contains no penal provisions whatsoever. It does not create any offences, civil penalties, or infringements. The only enforcement mechanism is the disallowance framework for the legislative instruments that can be made under item 9, and those instruments are themselves prohibited from creating offences or civil penalties.

The absence of penalties is deliberate. The Act’s function is purely mechanical - to ease the transition from one legal vehicle to another. If the principal Act imposes penalties for failure to comply with its duties (e.g., failing to provide information to the Commission), those penalties apply from commencement, but they flow from the principal Act, not from this transitional enactment. Similarly, if a person obstructs the transition - for example, by destroying documents that should be transferred under item 8 - the relevant offence would likely be under the Criminal Code (theft, fraud, or obstruction of a Commonwealth official) or under the Public Governance, Performance and Accountability Act 2013 (if the documents are Commonwealth records), not under this Act.

The enforcement implications are indirect. The Minister’s transitional rules cannot create punitive sanctions, so any enforcement gap after commencement would need to be addressed through existing laws. The practical risk is that the absence of a specific offence for, say, failing to hand over information to the new Commission might hamper a smooth transition if an employee or contractor refuses to cooperate. However, the public service employment framework provides disciplinary mechanisms for APS employees, and consultants can be dealt with under their contracts.

For those subject to the Act, the primary enforcement risk is not from this Act itself but from the principal Act once it commences. A transitional rule that fails to properly align two governance regimes could create confusion about what conduct is required, and non-compliance with an unworkable rule could expose a person to liability under the principal Act. But that liability would be contestable. The transitional rules power is subject to disallowance, so the Parliament and the Senate’s Scrutiny of Delegated Legislation Committee have a role in enforcement oversight.

The Act’s treatment of penalties is best understood as a constraint on executive power. Item 9(3)(a) and (b) limit what the Minister can do via legislative instrument. This protects individuals and entities from being subjected to new criminal or civil penalties without primary legislation. It is a deliberate safeguard.

This Act interacts with at least five other legal instruments. The most significant interaction is with the principal Act itself (the National Commission for Aboriginal and Torres Strait Islander Children and Young People Act 2026). This transitional Act is entirely dependent on the principal Act - it cannot commence without it, and its provisions operate by referencing definitions and provisions of the principal Act (item 1(2)). The transitional Act fills the gap between the principal Act’s establishment of the new commission and the pre existing executive agency. Without the transitional Act, the principal Act would have commenced and created a statutory commission, but the existing Head, staff, assets, and documents would have been in limbo. The transitional Act ensures a seamless handover.

The Public Service Act 1999 is heavily engaged. The NC Executive Agency was established under section 65 of that Act. Item 2(3) overrides subsection 65(4) (abolition of Head’s office) to allow continuity of appointment. Item 4 deems the new Statutory Agency under the principal Act to be the continuation of the former executive agency for purposes of the Public Service Act 1999. Item 5 displaces section 72 (which deals with transfers and excess employment). These interactions modify the default operation of the Public Service Act 1999 to prevent what would otherwise be a termination of employment and loss of identity.

The Public Governance, Performance and Accountability Rule 2014 is relevant through the concept of the “listed entity” in clause 12AA of Schedule 1. Item 3 ensures that this listing continues - the entity’s identity is not affected despite the change from executive agency to statutory commission. This matters because listed entity status under the PGPA Rule carries obligations regarding corporate plans, annual reports, and financial management. The transitional Act avoids any need for the entity to be re listed or to recommence its reporting cycles.

The Public Service (Terms and Conditions of Employment) (National Commission for Aboriginal and Torres Strait Islander Children and Young People) Determination 2024 is referenced in the note to item 5. This determination continues to apply to APS employees before, on and after commencement. The Act does not amend the determination; it simply preserves its operation. If the principal Act were to change the employment framework (e.g., by giving the Commissioner new powers to classify staff), the determination might need updating, but the transitional Act does not address that.

The Criminal Code and PGPA Act provide the backdrop for any misconduct - this Act does not replicate those provisions. The transitional rules power in item 9 is explicitly limited to avoid creating offences, civil penalties, or coercive powers, which ensures that the criminal law remains under the general statutory scheme, not delegated by the executive.

Finally, the Act interacts with the Acts Interpretation Act 1901 and the Legislation Act 2003 insofar as it is a Commonwealth Act that commences by reference to another Act. The definition of “commencement day” is tied to the commencement of the principal Act. If the principal Act were to be disallowed or never proclaimed, this transitional Act cannot operate.

The Act is an original enactment as at 26 March 2026. It has no amendment history because it is not an amendment act - it is a self-contained transitional Act. It amends no other legislation. There are no subsequent amendments recorded in the text provided.

The Act’s history is limited to its passage. The Minister’s second reading speech was made in the House of Representatives on 5 February 2026 and in the Senate on 3 March 2026. It received Royal Assent on 26 March 2026. Its commencement is contingent on the principal Act, with the projected date being 1 July 2026.

Because the Act is less than 12 months old at the time of writing, it has not yet been subject to amendment or repeal. The transitional rules power in item 9 is a legislative instrument making power, and any rules made under it would be subordinate legislation. Those rules could be amended or revoked by subsequent instruments, but the primary Act itself will likely remain unamended unless the principal Act is also amended in a way that requires updating the transitional provisions.

For a practitioner, the absence of amendment history is a relatively clean slate. However, because the Act is minor and mechanical, it may be vulnerable to being casually amended if the principal Act is significantly altered. The transitional rules also carry risk of frequent adjustment by the Minister, which would create a low level but ongoing amendment history at the delegated legislation level.

As of the date of this Act’s commencement (1 July 2026, assumed), there is no reported litigation. The Act is recent and has not been tested in court. However, potential litigation scenarios can be anticipated based on the Act’s provisions.

The most likely area of challenge concerns the continuity of appointment under item 2. A person who was appointed as Head of the NC Executive Agency might argue that the deemed appointment as National Commissioner is invalid because the original appointment was to a different legal entity and with different statutory duties. The Act explicitly overrides subsection 65(4) of the Public Service Act 1999, but a court could examine whether the Public Service Act 1999 itself permits such an override by a later Act - almost certainly yes, given the principle of parliamentary sovereignty. Still, a litigant could argue that the transitional provision amounts to an appointment without the merit based process required by section 24 of the principal Act. The Act says the continuing appointment is as if the person had been appointed under section 24, so the court would need to decide whether the statutory fiction is complete. No case law yet exists.

Another potential ground is employment law. An employee who was an APS employee in the NC Executive Agency might claim that the transfer without section 72 of the Public Service Act 1999 being applied deprives them of certain rights (e.g., a reassignment or severance on redundancy). The Act’s plain language says section 72 does not apply, which likely forecloses that challenge, but a creative argument could be made that the abolition of the executive agency amounts to a redundancy under the Fair Work Act 2009 if the new commission is a different employer. The continuity deeming in item 4(1) - that the Statutory Agency is taken to be the continuation - is designed to defeat that argument. No court has yet considered whether the deeming provision is sufficient to prevent a change of employer for redundancy purposes.

Challenges could also arise from the transitional rules if the Minister makes rules that arguably exceed the limit of item 9(3). For example, if a rule has the practical effect of imposing a coercive requirement without using the word “offence,” a court might strike it down as ultra vires. The Legislation Act 2003 provides for judicial review of legislative instruments.

A final area is contractual continuity. A private contractor who had a contract with the NC Executive Agency might attempt to argue that the contract is frustrated by the change of legal entity, despite the preservation provisions in items 3 and 4. The Act’s language that “identity is not affected” is strong, but a contractor could claim that the duties under the contract are incompatible with the new Commission’s statutory functions. No litigation on this point has been reported.

Several provisions in this short Act contain traps for the unwary. The first is the deeming of prior service for reappointment purposes under item 2(4). A person appointed as Head for a full five year term who transitions to Commissioner will serve out that term and then be ineligible for reappointment for five more years? Actually, the principal Act allows reappointment, but the five year limit is cumulative. If the Head served three years, the Commissioner term is only the remaining two years, and then only another five years maximum reappointment. But the Act says the period as Head “is taken to have held office as National Commissioner for that period.” This means if the Head’s appointment was for five years and they served one year before commencement, they have four years left. Upon reappointment at the end of that four years, they have already held office for five years (the one year plus four years), so the maximum reappointment is zero - they cannot be reappointed at all because subsection 24(4) of the principal Act says a person may be reappointed but not for a period that would result in the person holding office for a total of more than five years. If the total is already five years, reappointment is impossible. The gotcha is that a Commissioner who started fresh under the principal Act would have a clean five year clock; a transitioning Commissioner may have an impaired or zero reappointment ability.

Second, the disapplication of section 72 of the Public Service Act 1999 for APS employees in item 5(2) is a double edged sword. On one hand, it avoids a messy transfer process. On the other, it removes the employee’s right to be treated as excess or to seek a different role if the new commission decides to restructure. The employee cannot point to section 72 as a basis for a redundancy payout if the restructuring occurs immediately after commencement. The employee’s only recourse would be under the principal Act’s staffing provisions or the general APS redeployment policy, but not the statutory section.

Third, the consultant engagement provision in item 6 says the engagement continues “and may be dealt with.” This is ambiguous. It could mean the new Commissioner can vary or end the engagement under the same terms as before, or it could mean the Commissioner can deal with it as if it were a new engagement under section 37 of the principal Act. If the principal Act imposes additional requirements (e.g., a conflict of interest declaration, a cap on consultancy fees), the consultant could be subject to those requirements without prior notice. The lack of clarity invites disputes.

Fourth, the Minister’s transitional rules power in item 9 is broad but contains a hidden complexity. The rules must be made by legislative instrument, which means they are disallowable and subject to scrutiny. However, item 9(4) says “This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).” This means that the rules can encompass matters that might otherwise be impliedly excluded by other provisions in the Schedule. For example, the rules could override items 2 to 8 for specific transitional purposes? Possibly, but item 9(3) imposes the five prohibitions. The interaction between the Minister’s rule making power and the specific transitional provisions is not fully delineated, creating uncertainty about whether the Minister could prescribe something that contradicts the Act’s own preservation of identity.

Fifth, the definition of “commencement day” is the day this Act commences - but this Act commences at the same time as the principal Act. If there is a gap between the two (e.g., the principal Act commences at 12:01 AM and this Act at 12:02 AM), the transitional Act’s provisions would operate from the later time. The continuity provisions would need to cover that one minute gap. The Act does not address this, though it is likely a minor practical issue.

Finally, the absence of a provision for transfer of assets beyond documents. Items 7 and 8 cover information and documents, but what about physical asset? The former agency presumably had office equipment, leases, bank accounts, and intellectual property. The Act does not explicitly transfer those. Instead, it relies on the identity continuity deeming: the listed entity and statutory agency continue, so their property automatically continues. But if the legal form changed from an executive agency to a statutory commission, a bank might require a fresh authorisation. The transitional rules could cover this, but the Act itself does not, creating a potential administrative hiccup.

Compliance with this Act is largely passive - the Act does most of the work automatically - but a prudent officer or legal advisor should take several steps.

For the National Commissioner (transitioning Head): Confirm that your appointment instrument specifies an end date equal to what was set when you were appointed as Head of the NC Executive Agency. If your instrument was silent on duration, the standard provisions of the Public Service Act 1999 might apply; check with the Australian Government Solicitor. Keep a record of the date you were first appointed as Head so that the five year limit in section 24(4) of the principal Act can be calculated accurately. Ensure you have received a new letter of appointment or at least a written acknowledgement from the Department that your appointment continues under the principal Act.

For APS employees: No action is required from you individually - your employment continues automatically. However, you should verify that your pay and conditions are still correct under the Public Service Determination 2024. If your role or location changes, the new Commission must comply with the principal Act’s staffing provisions. Keep copies of your pre-commencement employment documentation in case a dispute arises about continuity of service.

For consultants: Review your engagement contract to see if it contains any term that is inconsistent with section 37 of the principal Act, such as confidentiality provisions that might conflict with the Commission’s information sharing functions. If the contract contemplates a specific statutory framework (e.g., “this engagement is under the Public Service Act 1999”), you may need a variation. The Act says the engagement continues “and may be dealt with,” so the new Commission is entitled to require amendments.

For the accountable authority of the listed entity: Ensure that the entity’s identity is correctly reflected in all official records, including contracts, bank accounts, and regulatory filings. Update any references to the former agency name to the new Commission name, even though the Act says identity is unaffected. Practical continuity requires clear external communication. Submit any required notifications to the PGPA regulator.

For the Minister and departmental staff: Decide whether any transitional rules are necessary to address gaps not covered by items 2 to 8. For example, if there are inter-agency agreements that refer to the “NC Executive Agency” by name, a transitional rule could deem those references to refer to the new Commission. When making such rules, adhere strictly to the prohibitions in item 9(3) - no offences, civil penalties, coercive powers, taxes, or appropriations, and no direct amendment of the text of the Act or the principal Act. The rules must be registered under the Legislation Act 2003 and tabled in Parliament.

For anyone who provided information or documents to the former agency: You should be aware that your information is now “relevant information” under the principal Act, which may have different rules about disclosure or use. Review the principal Act to understand your rights and obligations with respect to that information. If you object to the new Commission holding your data, the transitional Act provides no mechanism for retrieval. You would need to rely on the principal Act or other privacy legislation.

General compliance: The best approach is to maintain a transition register that documents all instruments, appointments, and property that are deemed to continue. This register will be useful if a third party challenges the continuity. Communicate the transition to all external stakeholders, including partner organisations, funding bodies, and the media, to avoid confusion about which legal entity they are dealing with after 1 July 2026. No penalty attaches to a failure to communicate, but the practical cost of litigation or contract disputes could be high.