Family and Child Commission Act 2014

An Act to establish the Queensland Family and Child Commission and for related purposes

Long title amd 2014 No. 27 s 52 sch 1pt 1

1Short title

This Act may be cited as the Family and Child Commission Act 2014.

2Commencement

This Act commences on 1 July 2014.

3Act binds all persons

(1)This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

4Object

The object of this Act is to establish the Queensland Family and Child Commission—

(a)to promote the safety, wellbeing and best interests of children and young people; and

(b)to promote and advocate the responsibility of families and communities to protect and care for children and young people; and

(c)to improve the child protection system.

5Definitions

The dictionary in schedule 1 defines particular words used in this Act.

s 5 amd 2014 No. 27 s 52 sch 1pt 1

6Establishment of commission

(1)The Queensland Family and Child Commission is established.

(2)The commission consists of the commissioners and the staff of the commission.

7Commission represents the State

(1)The commission represents the State.

(2)Without limiting subsection (1), the commission has the status, privileges and immunities of the State.

8Application of other Acts

(1)The commission is—

(a)a unit of public administration under the Crime and Misconduct Act 2001; and

(b)a statutory body under the Financial Accountability Act 2009 and the Statutory Bodies Financial Arrangements Act 1982.

(2)The Statutory Bodies Financial Arrangements Act 1982, part 2B explains how that Act affects the commission’s powers.

9Commission’s functions

(1)The commission has the following functions for the purposes of promoting the safety, wellbeing and best interests of children and young people and improving the child protection system—

(a)to provide oversight of the child protection system;

(b)to promote and advocate—

(i)the responsibility of families and communities to protect and care for children and young people; and

(ii)the safety and wellbeing of children and young people, particularly children in need of protection or in the youth justice system;

(c)to develop and review workforce planning and development strategies for the child protection system by collaborating with relevant agencies, the private sector and education providers;

(d)to inform and educate the community about—

(i)services available to strengthen and support families; and

(ii)the way in which the child protection system operates; and

(iii)research relevant to the child protection system;

(e)to develop and coordinate a multidisciplinary research program to inform policies and practices, in consultation with stakeholders and relevant agencies;

(f)to assist relevant agencies evaluate the efficacy of their programs and identify the most effective service models;

(g)to provide leadership and give expert advice to relevant agencies about laws, policies, practices and services;

(h)to increase collaboration and build capacity across different sectors to improve the delivery of services to children, young people and families;

(i)to analyse and evaluate, at a systemic level, policies and practices relevant to the child protection system and the performance of relevant agencies in delivering services;

(j)to report to the Minister about matters relating to a function mentioned in paragraphs (a) to (i);

(k)to perform a function incidental to a function mentioned in paragraphs (a) to (i).

(2)However, it is not a function of the commission to investigate the circumstances of a particular child, young person or family or to advocate on their behalf.

10Commission’s powers

(1)The commission has all the powers of an individual, and may, for example—

(a)enter into contracts; and

(b)acquire, hold, deal with and dispose of property; and

(c)appoint agents and attorneys; and

(d)engage consultants or contractors; and

(e)do anything else necessary or convenient to be done in the performance of its functions.

(2)Without limiting subsection (1), the commission has the powers given to it under this Act or another Act.

11Appointment of commissioners

(1)There are to be 2 commissioners for the commission.

(2)Each commissioner is appointed by the Governor in Council on the recommendation of the Minister.

(3)One of the commissioners is to be appointed as the principal commissioner.

(4)The Minister may recommend a person for appointment only if the Minister is satisfied the person is appropriately qualified to exercise the commission’s functions effectively and efficiently.

(5)Also, at least 1 person recommended by the Minister for appointment as a commissioner must be an Aboriginal person or a Torres Strait Islander.

12Commissioners employed under this Act

A commissioner is employed under this Act and not under the Public Service Act 2008.

13Term of office

Subject to this subdivision, a commissioner holds office for the term, stated in the commissioner’s instrument of appointment, of not more than 3 years.

14Conditions of appointment

(1)A commissioner is to be paid the remuneration and allowances decided by the Governor in Council.

(2)A commissioner holds office on the terms and conditions, not provided for by this Act, that are decided by the Governor in Council.

15Vacancy in office

(1)The office of a commissioner becomes vacant—

(a)if the commissioner—

(i)resigns office by signed notice to the Minister giving at least 1 month’s notice; or

(ii)is convicted of an indictable offence; or

(iii)is a person who is an insolvent under administration under the Corporations Act, section 9; or

(iv)is removed from office by the Governor in Council under subsection (2); or

(b)if the commissioner is suspended by the Minister under subsection (4)—during the period of the suspension.

(2)The Governor in Council may, at any time, remove a commissioner from office on the recommendation of the Minister.

(3)The Minister may recommend the commissioner’s removal only if the Minister is satisfied the commissioner—

(a)has been guilty of misconduct; or

(b)is incapable of performing his or her duties; or

(c)has neglected his or her duties or performed them incompetently.

(4)The Minister may suspend the commissioner for up to 60 days by signed notice to the commissioner if—

(a)there is an allegation of misconduct against the commissioner; or

(b)the Minister is satisfied a matter has arisen in relation to the commissioner that may be grounds for removal under this section.

16Preservation of rights of commissioner

(1)This section applies if a person who is a public service officer is appointed as a commissioner.

(2)The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer.

(3)At the end of the person’s term of office or resignation as a commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.

17Acting commissioner

(1)The Minister may appoint a person to act in the office of a commissioner during—

(a)a vacancy in the office of a commissioner; or

(b)any period, or all periods, when a commissioner is absent from duty, or can not, for another reason, perform the functions of the office.

(2)A person can not be appointed to act as a commissioner unless the Minister could recommend the person for appointment as a commissioner under section 11.

(3)To remove any doubt, it is declared that the Minister may appoint—

(a)1 of the commissioners to act in the office of the other commissioner; and

(b)another person to act in the office of a commissioner.

18Functions of commissioners

The functions of a commissioner are as follows—

(a)to ensure the commission performs its functions under this Act effectively and efficiently;

(b)to make recommendations to the Minister about any matter that—

(i)relates to the performance or exercise of the functions or powers of the commission or a commissioner; and

(ii)may help the Minister in the proper administration of this Act;

(c)to perform any other function given to a commissioner under this Act or another Act.

19Additional functions of principal commissioner

The functions of the principal commissioner are also—

(a)to control the commission; and

(b)to record, analyse, research and report on information about child deaths.

20Additional functions of commissioner

The functions of the commissioner who is not the principal commissioner also include ensuring the commission adequately and appropriately performs its functions mentioned in section 9(1)(b)(i) and (c).

21Powers of commissioners

A commissioner may exercise the powers of the commission, and any other powers given to the commissioner, under this Act or another Act.

22Ministerial direction

(1)A commissioner is subject to the directions of the Minister in performing the commissioner’s functions under this Act.

(2)The commissioner must comply with a direction given by the Minister.

23Ways in which commissioners are to perform functions

(1)In performing a commissioner’s functions, the commissioner must do the following—

(a)engage with, and take account of, the views of children, young people and their families;

(b)ensure the interests of Aboriginal people and Torres Strait Islanders are adequately and appropriately represented;

(c)respect and promote the role of Aboriginal and Torres Strait Islander service providers in supporting Aboriginal and Torres Strait Islander families and communities to protect and care for their children and young people;

(d)be sensitive to the ethnic or cultural identity and values of children, young people and their families;

(e)consult with relevant agencies and advocacy entities;

(f)work cooperatively with relevant agencies and help build their capacity to meet the needs of children, young people and their families.

(2)In this section—

advocacy entity means an entity that provides advocacy services for, or otherwise represents—

(a)particular children; or

(b)the interests of children generally.

24Commission staff

(1)The commission may employ the staff it considers appropriate to perform the commission’s functions.

(2)The staff are to be employed under the Public Service Act 2008.

25Register

(1)The principal commissioner must keep a register of information relating to child deaths in Queensland in the way the principal commissioner considers appropriate.

(2)The principal commissioner must include on the register information given, under the following sections, to the principal commissioner—

(a)the Births, Deaths and Marriages Registration Act 2003, section 48A or 48B;

(b)the Coroners Act 2003, section 10A, 45, 46 or 54A.

(3)The principal commissioner may also include on the register information given to the principal commissioner—

(a)under the Building Act 1975, section 245I, to the extent the information relates to a child death; or

(b)in response to a request made under section 27.

26Other functions relating to child deaths

The principal commissioner also has the following functions to help reduce the likelihood of child deaths—

(a)in relation to the information about child deaths recorded in the register—

(i)to classify the deaths according to cause of death, demographic information and other relevant factors; and

(ii)to analyse the information to identify patterns or trends;

(b)to conduct research, alone or in cooperation with other entities;

(c)to identify areas for further research by the commission or other entities;

(d)to make recommendations, arising from keeping the register and conducting research under this section, about laws, policies, practices and services.

27Requests by principal commissioner for information relevant to child deaths

(1)Subsection (2) applies if the principal commissioner considers a public entity has information necessary for the performance of the commissioner’s functions under this part.

(2)The principal commissioner may, by written notice, ask the public entity to give the information to the commissioner within a stated reasonable time.

(3)The public entity must comply with the request unless the entity reasonably considers the disclosure of the information—

(a)would prejudice the investigation of a contravention, or possible contravention, of the law; or

(b)would prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; or

(c)would endanger a person’s life or physical safety.

(4)However, in complying with the request, the public entity and the principal commissioner must ensure—

(a)the information given to the commissioner relates to the commissioner’s functions under this part; and

(b)to the extent possible, the privacy of any person to whom the information relates is protected from unjustified intrusion.

(5)If the public entity refuses to comply with the request, the entity must give written notice to the principal commissioner of its reasons for the refusal.

(6)The principal commissioner and a public entity may enter into an arrangement to facilitate the provision of information under this section.

Example for subsection (6)—

The principal commissioner and a public entity may enter into a memorandum of understanding under which the entity gives the principal commissioner access to a database periodically to extract information.

(7)A public entity may charge a fee for a service under an arrangement under subsection (6) that is not more than the actual cost of the service.

(8)In this section—

information includes confidential information.

28Access to information in the register for research purposes

(1)This section applies if a person wants to access information in the register to undertake research to help reduce the likelihood of child deaths.

(2)The person may access the information only with the principal commissioner’s consent.

(3)The principal commissioner may consent only if satisfied—

(a)the person is a genuine researcher; and

(b)the information is reasonably necessary for research mentioned in subsection (1).

(4)The principal commissioner must not give the person access to confidential information unless the commissioner reasonably believes—

(a)the confidential information is necessary for the research to be effective; and

(b)the opportunity for increased knowledge that may result from the research outweighs the need to protect the privacy of any living or dead person.

(5)The principal commissioner may impose the conditions on the consent that the commissioner considers appropriate including, for example, a condition that the person must not disclose stated information to anyone else or use the information other than for a stated purpose.

(6)The person must comply with any condition imposed on the consent unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(7)In this section—

genuine researcher means—

(a)a person for whom an application for health information has been granted under the Public Health Act 2005, chapter 6, part 4; or

(b)a member of a quality assurance committee established under the Hospital and Health Boards Act 2011, section 82; or

(c)another person who the principal commissioner considers is conducting genuine research.

person includes a public entity.

29Reports

(1)By 31 October in each year, the principal commissioner must prepare, and give to the Minister, a report about the following matters for the previous financial year—

(a)the results of analysing information included in the register;

(b)the commissioner’s activities relating to research about child deaths;

(c)any persons given access to information under section 28;

(d)any recommendations the commissioner has made about laws, policies, practices or services;

(e)the extent to which previous recommendations of the commissioner have been implemented.

(2)The principal commissioner may also prepare, and give to the Minister, other reports arising from the performance of the commissioner’s functions under section 26.

(3)The principal commissioner must not include in a report any comments adverse to an entity identifiable from the report, unless the entity has been given a copy of the comments and a reasonable opportunity to respond to them.

(4)If the entity gives the principal commissioner a written statement in response to the comments and asks that the statement be included in the report, the commissioner must include the statement in the report.

(5)However, the principal commissioner is not required by subsection (4) to include a statement so far as it contains information that the commissioner considers should not be publicly disclosed on the ground that—

(a)disclosure of the information may adversely affect the outcome of an inquiry or investigation by a complaints entity or the Queensland Police Service, or an investigatory body established under a law of the Commonwealth; or

(b)the information concerns a matter before a court.

(6)It is a lawful excuse for the publication of any defamatory statement made in a report that the publication is made in good faith and is, or purports to be, made for this Act.

(7)Within 14 sitting days after receiving a report under this section, the Minister must table it in the Legislative Assembly.

30Establishment

The principal commissioner may establish 1 or more advisory councils, as the commissioner considers appropriate, to advise on matters relating to the commission’s functions.

31Membership

(1)An advisory council has the membership decided by the principal commissioner.

(2)However, the principal commissioner must ensure that at least 1 member of each advisory council is an Aboriginal person or a Torres Strait Islander.

(3)The principal commissioner may appoint a person to an advisory council only if the commissioner is satisfied the person is appropriately qualified to advise on the matters referred to the council by the commissioner.

32Function

(1)An advisory council’s function is to help the commission to effectively and efficiently perform the commission’s functions by advising on matters referred to it by the principal commissioner.

(2)It is not an advisory council’s function to advise the principal commissioner on the day-to-day management of the commission.

33Dissolution

The principal commissioner may dissolve an advisory council at any time.

34Other matters

The principal commissioner may decide matters about an advisory council that are not provided for under this Act, including, for example—

(a)the terms on which the members of an advisory council hold office; and

(b)the way in which the advisory council must conduct meetings or report to the principal commissioner.

35Requests by principal commissioner for general information

(1)Subsection (2) applies if the principal commissioner considers a public entity has information necessary for the performance of a commissioner’s functions, other than the principal commissioner’s functions under part 3.

(2)The principal commissioner may, by written notice, ask the public entity to give the information to the commissioner within a stated reasonable time.

(3)The public entity must comply with the request unless the entity reasonably considers the disclosure of the information—

(a)is prohibited under an Act; or

(b)is impracticable; or

(c)would prejudice the investigation of a contravention, or possible contravention, of the law; or

(d)would prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; or

(e)would endanger a person’s life or physical safety.

(4)If the public entity refuses to comply with the request, the entity must give written notice to the principal commissioner of its reasons for the refusal.

(5)This section does not apply to confidential information.

36Confidentiality of information

(1)If a person gains confidential information through involvement in the administration of this Act, the person must not—

(a)make a record of the information or intentionally disclose the information to anyone, other than under subsection (3); or

(b)recklessly disclose the information to anyone.

Maximum penalty—200 penalty units.

(2)A person gains information through involvement in the administration of this Act if the person gains the information because of being, or an opportunity given by being—

(a)the Minister or a member of the Minister’s staff; or

(b)a commissioner; or

(c)a staff member of the commission; or

(d)a person consulted or employed by the commission for this Act; or

(e)a member of an advisory council.

(3)A person may make a record of confidential information or disclose it to someone else—

(a)if the principal commissioner decides the information may be disclosed under subsection (4); or

(b)under this Act; or

(c)as authorised or required under another law; or

(d)in compliance with a lawful process requiring the production of documents or giving of evidence before a court or tribunal; or

(e)with the written consent of the person to whom the information relates.

(4)The principal commissioner may decide to disclose confidential information to a person if the commissioner is satisfied—

(a)the disclosure is reasonably necessary—

(i)to prevent or minimise the risk of harm to anyone; or

(ii)to improve the performance of a function or service to prevent or minimise the risk of harm to anyone; and

(b)the public interest in preventing or minimising the risk of harm outweighs the need to protect the privacy of any living or dead person.

37Confidentiality of information given by persons involved in administration of Act to other persons

(1)This section applies to a person (the receiver) who is given confidential information by a person mentioned in section 36.

(2)The receiver must not use the information or disclose it to anyone else.

Maximum penalty—200 penalty units.

(3)However, the receiver may use the information or disclose it to someone else if the use or disclosure—

(a)is authorised by the principal commissioner; or

(b)is otherwise required or permitted by law.

38Delegations

(1)The principal commissioner may delegate the principal commissioner’s functions under this Act to the other commissioner.

(2)A commissioner may delegate the commissioner’s functions under this Act to an appropriately qualified staff member of the commission.

(3)In this section—

functions includes powers.

39Protecting officials from liability

(1)An official is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.

(2)If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State.

(3)In this section—

official means any of the following when performing a function or exercising a power under this Act—

(a)the Minister;

(b)a member of an advisory council.

Note—

See the Public Service Act 2008, section 26C about protection from civil liability for State employees.

40Annual report

(1)The commission must include in its annual report for a financial year—

(a)information about the following matters for the financial year—

(i)Queensland’s performance in relation to achieving State and national goals relating to the child protection system;

Example for subparagraph (i)—

The commission may report about progress in relation to the reforms recommended in the report titled ‘Taking Responsibility: A Roadmap for Queensland Child Protection’ made by the Queensland Child Protection Commission of Inquiry.

(ii)Queensland’s performance over time in comparison to other jurisdictions;

(iii)Queensland’s progress in reducing the number of, and improving the outcomes for, Aboriginal and Torres Strait Islander children and young people in the child protection system; and

(b)details of any direction given under section 22 by the Minister in relation to the financial year; and

(c)details of any action taken by the commission as a result of the direction; and

(d)any other information required by the Minister.

(2)Also, the commission may include in an annual report information, opinion and recommendations about any matter relating to the commission’s functions.

(3)In preparing an annual report, the commission may consult with relevant agencies it considers may be significantly affected by the report.

Note—

See the Financial Accountability Act 2009, section 63 for requirements about preparing an annual report and tabling it in the Legislative Assembly.

41Review of commission

(1)The Minister must arrange an independent review of the performance by the commission of its functions within 5 years after the commencement of this section.

(2)As soon as practicable after finishing the review, the Minister must table a report about its outcome in the Legislative Assembly.

42Review of Act

(1)The Minister must review the effectiveness of this Act as soon as practicable after the end of 5 years after the commencement of this section.

(2)As soon as practicable after finishing the review, the Minister must table a report about its outcome in the Legislative Assembly.

43Regulation-making power

The Governor in Council may make regulations under this Act.

44Definitions for pt 6

In this part—

commencement means 1 July 2014.

former CCYPCG Act means the Commission for Children and Young People and Child Guardian Act 2000 as in force from time to time before the commencement.

former commissioner means the Commissioner for Children and Young People and Child Guardian under the former CCYPCG Act, section 14.

former register means the register of child deaths kept by the former commissioner under the former CCYPCG Act, section 143.

45Immediate appointment of principal commissioner

(1)This section applies to the person who held the office of the former commissioner immediately before the commencement.

(2)Despite sections 11, 13 and 14, the person—

(a)is appointed, on the commencement, as the principal commissioner; and

(b)is employed on the same terms and conditions on which the person was employed as the former commissioner.

(3)The person’s appointment under subsection (2) continues until the earlier of the following—

(a)the resignation of the person;

(b)the end of the term for which the person was appointed as the former commissioner;

(c)the appointment of a person as the principal commissioner under this Act, whether or not the same person is appointed.

(4)If the former CCYPCG Act, section 29 applied to the person, that section continues to apply to the person as if—

(a)the Child Protection Reform Act 2014 had not been enacted; and

(b)a reference in that section to the end of the person’s term of office or resignation is a reference to the end of the person’s term of office or resignation—

(i)as the principal commissioner under subsection (3); or

(ii)if applicable, as a commissioner under this Act; and

(c)a reference in that section to service as a commissioner includes a reference to the person’s service as the principal commissioner and a commissioner, if applicable.

(5)To remove any doubt, it is declared that this section does not limit or otherwise affect the person’s right to a benefit or entitlement that, under the terms and conditions, had accrued or was accruing immediately before the commencement.

46Former register becomes the register under this Act

(1)The former register becomes the register kept by the principal commissioner under this Act.

(2)A request for information made by a person under the former CCYPCG Act, section 144 is taken to be a request made to the principal commissioner under section 28.

47First report

(1)This section applies to a report that, under section 29, must be prepared by the principal commissioner by 31 October 2014 for the financial year ending 30 June 2014.

(2)For section 29(1)—

(a)a reference to the register is taken to be a reference to the former register; and

(b)a reference to the activities or recommendations of the principal commissioner is taken to be a reference to the activities or recommendations of the former commissioner; and

(c)a reference to information given under part 3 is taken to be a reference to information given to a person by the former commissioner under the former CCYPCG Act, section 144.

48Information arrangements continue

(1)This section applies to an arrangement made between the former commissioner and a government entity under the former CCYPCG Act, section 147.

(2)The arrangement continues to have effect until the principal commissioner or the government entity decides to end the arrangement under its terms.

(3)The former CCYPCG Act, section 147 continues to apply to the arrangement while it is in effect under subsection (2) as if the Child Protection Reform Act 2014 had not been enacted.

(4)In a document relating to the arrangement, a reference to the former commissioner may be taken, if the context permits, to be a reference to the principal commissioner.

(5)A fee for a service owed to a government entity by the former commissioner under the arrangement is taken to be a fee owed to the entity by the principal commissioner.

section 5

advisory council means an advisory council established under section 30.

annual report means an annual report prepared under the Financial Accountability Act 2009, section 63.

child protection system—

(a)means the system of services provided by relevant agencies to children and young people in need of protection or at risk of harm; and

(b)includes preventative and support services to strengthen and support families and prevent harm to children and young people.

commission means the Queensland Family and Child Commission established under section 6.

commissioner means a commissioner appointed under section 11(2).

complaints entity means any of the following—

(a)the public guardian;

(b)the ombudsman;

(c)the human rights commissioner under the Anti-Discrimination Act 1991;

(d)the Crime and Corruption Commission under the Crime and Corruption Act 2001;

(e)the Health Ombudsman.

sch 1 def complaints entity amd 2019 No. 5 s 135

confidential information includes information about a person’s affairs but does not include—

(a)information already publicly disclosed unless further disclosure of the information is prohibited by law; or

(b)statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates.

harm, to a child, see the Child Protection Act 1999, section 9.

in need of protection, for a child, see the Child Protection Act 1999, section 10, definition of child in need of protection.

principal commissioner means the principal commissioner appointed under section 11(3).

public entity means a public sector unit or relevant agency and includes the chief executive, however described, of a public sector unit or relevant agency.

public guardian means the public guardian under the Public Guardian Act 2014.

register means the child death register kept by the principal commissioner under section 25.

relevant agency means any of the following—

(a)the public guardian;

(b)the ombudsman;

(c)the Queensland Police Service;

(d)the Director of Child Protection Litigation under the Director of Child Protection Litigation Act 2016;

(e)a public sector unit, government agency or publicly funded non-government agency that is mainly responsible for, or provides services or deals with complaints in relation to, any of the following matters—

•Aboriginal and Torres Strait Islander policy or services

•administration of justice or legal services to children and young people

•care of children and young people

•child safety

•community services

•corrective services

•disability services

•education

•housing services

•public health.

sch 1 def relevant agency amd 2016 No. 23 s 101

young person means a person, at least 18 years but no more than 21 years, who is transitioning from being a child in care under the Child Protection Act 1999 to independence.

sch 1 (prev sch 2) renum 2014 No. 27 s 52 sch 1 pt 1