9   Establishment of the Office of the National Commissioner for Children and Young People

             (1)  The Office of the National Commissioner for Children and Young People is established by this section.

             (2)  The Office of the National Commissioner for Children and Young People consists of the National Commissioner for Children and Young People and the staff as mentioned in section 18.

10   National Commissioner for Children and Young People

             (1)  There is to be a National Commissioner for Children and Young People, who is appointed by the Governor-General, on the recommendation of the Prime Minister.

             (2)  A person is not qualified to be appointed as the National Commissioner for Children and Young People unless the Prime Minister is satisfied that:

                     (a)  the person has appropriate qualifications, knowledge or experience and is of good character; and

                     (b)  the person has a demonstrated commitment to, and capacity to advance the cause of, the welfare of children and young people.

             (3)  Before the Commissioner is appointed a check for any relevant criminal record, any relevant apprehended violence orders, or any relevant disciplinary proceedings in relation to the person to be appointed must be carried out.

11   Terms and conditions of appointment

             (1)  The Commissioner holds office for such period, not exceeding 5 years, as is specified in the instrument of the person’s appointment, but is eligible for re-appointment.

             (2)  The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor-General acting on the advice of the Executive Council.

12   Remuneration of Commissioner

             (1)  The Commissioner is to be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid such remuneration as is prescribed in the regulations.

             (2)  The Commissioner is to be paid such allowances as are prescribed in the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

13   Leave of absence

             (1)  The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

14   Outside employment

                   Except with the approval of the Minister, the Commissioner must not engage in paid employment outside the duties of the office of the Commissioner.

15   Resignation

                   The Commissioner may resign from the office of Commissioner by delivering to the Governor-General a signed notice of resignation.

16   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Commissioner by reason of misbehaviour or physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of the Commissioner if the Commissioner:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

                     (b)  commits any offence against children; or

                     (c)  is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or

                     (d)  contravenes section 14.

17   Acting Commissioner

                   The Minister may appoint a person to act as Commissioner:

                     (a)  during a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Commissioner,

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

18   Staff and consultants

             (1)  The staff necessary to assist the Commissioner must be persons appointed or employed under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and

                     (b)  the Commissioner is Head of that Statutory Agency.

             (3)  The Commissioner may engage as consultants persons with suitable qualifications and experience. The terms and conditions on which a consultant is engaged are as determined by the Commissioner.

19   Functions of the Commissioner

             (1)  Subject to this Act, the Commissioner has the following functions:

                     (a)  to monitor, promote and report on the safety, welfare and well being of Australian children, including but not restricted to, Aboriginal and Torres Strait Islander and disadvantaged children and young people (see subsection 20(a)); and

                     (b)  to increase public awareness of matters relating to the welfare of children and young people; and

                     (c)  to promote and support the role of the family and parents in the development and well being of children; and

                     (d)  to promote the interests, rights and welfare of children and young people; and

                     (e)  to promote understanding of and investment in early childhood development and requirements for quality child care and early childhood services; and

                      (f)  to promote the participation of children and young people in relevant decision making forums; and

                     (g)  to develop best practice models and protocols for the provision of services for children and young people, and for dealing with child abuse complaints; and

                     (h)  to develop a National Code for the Protection of Children in accordance with Part 3 of this Act; and

                      (i)  to co-ordinate the Working with Children Check on persons employed or applying to be employed in certain child-related employment or working or applying to work as a child-related volunteer in certain organisations in accordance with Part 4 of this Act; and

                      (j)  to act as the legal guardian of unaccompanied children who are not Australian citizens and arrive in Australia without a required visa or other authority for entry into Australia; and

                     (k)  to promote the participation of children and young people in informed discussion of issues concerning the interests of children and young people in relevant public and private forums; and

                      (l)  to undertake and promote research into issues relating to the welfare of children and young people; and

                    (m)  to monitor and assess the policies and practices of Commonwealth agencies and Commonwealth laws relevant to children and young people; and

                     (n)  to monitor programs and initiatives for compliance with the United Nations Convention on the Rights of the Child; and

                     (o)  to initiate and conduct inquiries into and make recommendations on any matter, including any enactment or law or any practice or procedure, relating to the welfare of children and young people.

             (2)  The Commissioner has all necessary or convenient powers to perform the Commissioner’s functions.

             (3)  Nothing in subsection (1) authorises the Commissioner to deal directly with the individual complaints or concerns of particular children or young people but the Commissioner, on behalf of particular classes of children or in relation to general or systemic issues affecting children, may initiate complaints with or intervene in inquiries being conducted by other bodies authorised to conduct such inquiries.

20   How the Commissioner is to perform functions

                   In performing the Commissioner’s functions, the Commissioner must:

                     (a)  have special regard to and, where appropriate, report specifically on the needs and interests of children and young people who are:

                              (i)  of Aboriginal or Torres Strait Islander origin; or

                             (ii)  disadvantaged or vulnerable because of disability, geographic isolation, homelessness or poverty; and

                     (b)  consult with children and young people in ways appropriate to their age and maturity; and

                     (c)  listen to and seriously consider the concerns, views and wishes of children and young people; and

                     (d)  adopt work practices that ensure the Office of the Commissioner is accessible to children and young people and encourages their participation; and

                     (e)  consult with parents and guardians of children; and

                      (f)  consult with relevant Commonwealth agencies, State and Territory bodies and other organisations; and

                     (g)  refer any individual matters to the appropriate authority.

21   Commissioner must act independently

             (1)  In performing the Commissioner’s functions, the Commissioner:

                     (a)  must act independently and in a way that promotes and protects the rights, interests and well being of children and young people; and

                     (b)  is not under the control or direction of the Minister.

             (2)  Subsection (1) is not limited by section 20 or 22.

22   Co-operation with other agencies

             (1)  The Commissioner and other Commonwealth agencies that provide or deal with services or issues affecting children and young people must work in co-operation in the exercise of their respective functions, including the Australian Institute of Family Studies which has responsibility for the National Child Protection Clearinghouse.

             (2)  The Commissioner must consult with State and Territory Governments to develop agreements concerning co-operation and interaction between the Office of the Commissioner and relevant State and Territory bodies, including in connection with the provision of information or access to documents required by the Commissioner in relation to his or her functions.

23   Appointment of Deputy Commissioners

             (1)  The Governor-General, on the advice of the Executive Council, may appoint one or more Deputy Commissioners to carry out specified functions, in particular, if required, Deputy Commissioners may be appointed for the protection of children and for Aboriginal and Torres Strait Islander children.

             (2)  Deputy Commissioners are appointed by written instrument setting out a specified period of appointment, a specified project or function to be carried out and any other terms and conditions of appointment.

             (3)  An instrument under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

24   Report to the United Nations Committee on the Rights of the Child

             (1)  The Commissioner is responsible for preparation of reports to the United Nations Committee on the Rights of the Child under the terms of the United Nations Convention on the Rights of the Child.

             (2)  In preparing such reports the Commissioner must consult with all relevant Commonwealth agencies, State and Territory bodies and non-government organisations.

             (3)  Each report prepared by the Commissioner under subsection (1) must be given to the Minister who must transmit the report to the Secretary-General of the United Nations as soon as practicable after receiving it.

             (4)  Nothing in this section prevents the Minister or another Minister of the Commonwealth from preparing and transmitting to the Secretary-General of the United Nations other reports to the United Nations Committee on the Rights of the Child on behalf of Australia.

25   Reports on inquiries and other functions

             (1)  When the Commissioner conducts an inquiry under subsection 19(o), the Commissioner must prepare a report for Parliament on the inquiry including any recommendations he or she wishes to make in relation to it.

             (2)  The Commissioner may report to the Parliament from time to time on any matter related to his or her functions.

             (3)  Reports to the Parliament prepared under this section must be given to the Minister to be tabled in each House of the Parliament.

26   Annual report

             (1)  The Commissioner must, as soon as practicable after 30 June, prepare and give to the Minister a report of its operations during the year that ended on 30 June.

             (2)  The annual report must include reports on progress in development of a National Code for the Protection of Children as required by section 40 of this Act.

27   Reports to be tabled in Parliament

                   The Minister must cause a copy of every report given to the Minister by the Commissioner under this Division to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister, unless the Commissioner states that the report should not be made public.

28   Definitions

                   In this Part, unless the contrary intention appears:

Advisory Committee means the Advisory Committee on Children established by section 29.

member means a member of the Advisory Committee.

29   Advisory Committee on Children

                   The Advisory Committee on Children is established.

30   Membership

             (1)  The Advisory Committee consists of such members as the Minister determines.

Membership

             (2)  However, the Minister must ensure that the membership includes:

                     (a)  at least one person with extensive experience in each of the following:

                              (i)  care or welfare of children;

                             (ii)  education of children;

                            (iii)  children’s health;

                            (iv)  Aboriginal or Torres Strait Islander children;

                             (v)  child development or related matters; and

                     (b)  at least one of each of the following:

                              (i)  parents, grandparents or guardians;

                             (ii)  persons who have at least 5 years experience in delivering services to children;

                            (iii)  persons who have undertaken academic research in a field related to the welfare or development of children;

                            (iv)  persons representing organisations in which children participate.

Appointment

             (3)  The Minister must appoint members by written instrument.

Chair

             (4)  The Minister must appoint a member to be the Chair of the Advisory Committee.

31   Functions

                   The functions of the Advisory Committee are:

                     (a)  on its own initiative, or when requested by the Commissioner, to advise the Commissioner on matters relevant to his or her functions; and

                     (b)  subject to any direction given by the Commissioner, to advise on and promote community education, and community consultation, in relation to the protection and well being of children and young people.

32   Procedures of the Advisory Committee

                   The Advisory Committee is to determine its own procedures.

33   Appointment conditions of members

                   The regulations may prescribe matters related to the members of the Advisory Committee on Children including, but not limited to:

                     (a)  term of appointment; and

                     (b)  resignation; and

                     (c)  disclosure of interests; and

                     (d)  termination of appointment; and

                     (e)  leave of absence; and

                      (f)  payment of allowances.

34   Commissioner may establish other committees

             (1)  The Commissioner may establish committees in addition to the Advisory Committee as he or she sees fit.

             (2)  A committee established under subsection (1) shall have such membership, functions and conditions as are determined by the Commissioner.

35   Commissioner to seek advice in relation to young people

                   When dealing with matters relating to young people, the Commissioner must seek advice from existing youth advocacy bodies and may seek advice from other relevant bodies.

36   Commissioner may consult other bodies

                   In addition to the Advisory Committee the Commissioner may consult any existing committee or body in relation to children’s issues as he or she sees fit.