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:

1. 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.