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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Ageing and Disability Commissioner
Bill 2019
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Objects and principles of Act 2
Part 2 Appointment of Commissioner
5 Appointment of Ageing and Disability Commissioner 4
6 Employment and remuneration 4
7 Vacancy in office 4
8 Removal from office 5
9 Acting Commissioner 5
10 Staff 5
11 Delegation 5
Part 3 Functions of Commissioner
Division 1 General functions
12 Functions of Commissioner 6
13 Reports may be made to Commissioner 6
14 Exchange of information 7
Ageing and Disability Commissioner Bill 2019 [NSW]
Contents
Page
15 Protection of persons who make reports 8
Division 2 Investigations and public inquiries
16 Compulsory attendance at meetings and production of documents 9
17 Search warrants 9
18 Restrictions on providing information 10
19 Public inquiries 10
Part 4 Official Community Visitors
20 Definitions 12
21 Appointment of Official Community Visitors 12
22 Functions of Official Community Visitors 13
23 Co-ordination of Official Community Visitors 13
24 Protection against retribution 14
Part 5 Annual reports and special reports
25 Annual reports to Parliament 15
26 Report about disability advocacy 15
27 Special reports to Parliament and to Minister 15
28 Provisions relating to reports 16
Part 6 Miscellaneous
29 Ageing and Disability Advisory Board 17
30 Personal liability 17
31 Disclosure of information 17
32 Obstruction of Commissioner 18
33 Proceedings for offences 18
34 Act to bind Crown 18
35 Regulations 18
36 Independent review of Act 19
Schedule 1 Amendment of Acts 20
Page 2
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2019
New South Wales
Ageing and Disability Commissioner
Bill 2019
Act No , 2019
An Act to establish the office of Ageing and Disability Commissioner and to provide for the
functions of that office; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Ageing and Disability Commissioner Bill 2019 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Ageing and Disability Commissioner Act 2019.
2 Commencement
(1) This Act commences on 1 July 2019, except as provided by subsection (2).
(2) Part 4 and Schedule 1.1 [1] commence on a day or days to be appointed by
proclamation.
3 Definitions
(1) In this Act:
Board means the Ageing and Disability Advisory Board established under section
27.
Commissioner means the Ageing and Disability Commissioner appointed under
section 5.
disability has the same meaning as in the Disability Inclusion Act 2014.
function includes a power, authority or duty and exercise a function includes
perform a duty.
government sector agency has the same meaning as it has in the Government Sector
Employment Act 2013 and includes a council within the meaning of the Local
Government Act 1993.
investigation means an investigation of a report conducted by the Commissioner
under Part 3.
Official Community Visitor means an Official Community Visitor appointed under
section 21.
older adult means a person who is aged:
(a) 50 years or over, in the case of an Aboriginal or Torres Strait Islander person,
or
(b) 65 years or over, in any other case.
report, other than in Part 5, means a report made to the Commissioner under section
13 and includes a matter dealt with as a report by the Commissioner under that
section or section 22 (3).
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
4 Objects and principles of Act
(1) The objects of this Act are:
(a) to protect and promote the rights of adults with disability and older adults, and
(b) to protect adults with disability and older adults from abuse, neglect and
exploitation.
(2) When exercising a function under this Act, the Commissioner or any other person
must have regard to the objects of the Act and the following principles:
(a) adults with disability and older adults have the right to respect for their worth
and dignity as individuals and to live free from abuse, neglect and exploitation,
Page 2
Ageing and Disability Commissioner Bill 2019 [NSW]
Part 1 Preliminary
(b) adults with disability and older adults have the right to respect for their cultural
and linguistic diversity, age, gender, sexual orientation and religious beliefs,
(c) adults with disability and older adults have the right to privacy and
confidentiality,
(d) adults with disability and older adults have the right to exercise choice and
control in the pursuit of their goals and the planning and delivery of their
supports and services,
(e) families, carers and other significant persons have a crucial role in the lives of
adults with disability and older adults and it is important to respect and
preserve those relationships.
(3) When exercising a function under this Act, the Commissioner or any other person
must have regard to the following:
(a) adults with disability and older adults may face multiple disadvantages and are
potentially more vulnerable to abuse, neglect and exploitation,
(b) a person from any of the following groups who is also an adult with disability
or older adult may face additional disadvantages and barriers to accessing
supports and services:
(i) women,
(ii) Aboriginal and Torres Strait Islander adults,
(iii) gay, lesbian, bisexual, transgender and intersex communities,
(iv) adults from culturally and linguistically diverse backgrounds,
(v) adults living in regional and remote areas.
(4) When exercising a function under this Act with respect to a particular adult with
disability or older adult, the Commissioner or any other person must have regard to
the wishes of the adult.
(5) This section is intended to give guidance in the administration of this Act and does
not create, or confer on any person, any right or entitlement enforceable at law.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 2 Appointment of Commissioner
Part 2 Appointment of Commissioner
5 Appointment of Ageing and Disability Commissioner
(1) The Governor may appoint an Ageing and Disability Commissioner.
(2) The Commissioner holds office for the term, not exceeding 5 years, specified in the
instrument of appointment, but is eligible for re-appointment.
(3) A person is not eligible to be appointed for more than 2 terms of office as
Commissioner (whether or not consecutive terms).
(4) The office of Commissioner is a full-time office and the holder of the office is
required to hold it on that basis, except to the extent permitted by the Minister.
6 Employment and remuneration
(1) The employment of the Commissioner is (subject to this Act) to be governed by a
contract of employment between the Commissioner and the Minister.
(2) The following provisions of or made under the Government Sector Employment Act
2013 relating to the employment of Public Service senior executives apply to the
Commissioner (but in the application of those provisions a reference to the employer
of a Public Service senior executive is to be read as a reference to the Minister):
(a) provisions relating to the band in which an executive is to be employed,
(b) provisions relating to the contract of employment of an executive,
(c) provisions relating to the remuneration, employment benefits and allowances
of an executive.
(3) The office of Commissioner is a statutory office and the provisions of the
Government Sector Employment Act 2013 relating to the employment of Public
Service employees do not apply to that office, except as provided by this section.
7 Vacancy in office
(1) The office of Commissioner becomes vacant if the Commissioner:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office by the Governor under section 8, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with the Commissioner's creditors
or makes an assignment of the Commissioner's remuneration for their benefit,
or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable, or
(h) is imprisoned in respect of a conviction for an offence punishable in New
South Wales by imprisonment or for an offence committed elsewhere than in
New South Wales that, if committed in New South Wales, would be an offence
so punishable.
(2) If the office of Commissioner becomes vacant, a person is, subject to this Act, to be
appointed to fill the vacancy.
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Part 2 Appointment of Commissioner
8 Removal from office
(1) The Governor may remove the Commissioner from office, but only for
incompetence, incapacity or misbehaviour.
(2) The Commissioner cannot be removed from office under Part 6 of the Government
Sector Employment Act 2013.
9 Acting Commissioner
(1) The Minister may appoint a person to act as the Commissioner during the illness or
absence of the Commissioner or during a vacancy in the office of Commissioner.
(2) A person, while acting as Commissioner, has and may exercise the functions of the
Commissioner and is taken to be the Commissioner.
(3) The Minister may, at any time, remove a person from office as acting Commissioner.
(4) An acting Commissioner is entitled to be paid the remuneration (including travelling
and subsistence allowances) that the Minister may from time to time determine.
10 Staff
Persons may be employed in the Public Service under the Government Sector
Employment Act 2013 to enable the Commissioner to exercise the Commissioner's
functions.
Note. Section 59 of the Government Sector Employment Act 2013 provides that the persons
so employed (or whose services the Commissioner makes use of) may be referred to as
officers or employees, or members of staff, of the Commissioner. Section 47A of the
Constitution Act 1902 precludes the Commissioner from employing staff.
11 Delegation
The Commissioner may delegate any of the Commissioner's functions (other than
this power of delegation) to any member of the staff of the Commissioner or to a
person of a class prescribed by the regulations.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Division 1 General functions
12 Functions of Commissioner
(1) The Commissioner has the following functions:
(a) to deal with allegations of abuse, neglect and exploitation of adults with
disability and older adults, whether on the basis of a report made to the
Commissioner or at the Commissioner's own initiative, including by referring
matters to appropriate persons or bodies and by conducting investigations,
(b) to take further action, following an investigation into an allegation of abuse,
neglect or exploitation of an adult with disability or older adult, that the
Commissioner considers necessary to protect the adult from abuse, neglect and
exploitation, including by making an application to a court or tribunal in
respect of the adult,
(c) to raise awareness and educate the public about matters relating to the abuse,
neglect and exploitation of adults with disability and older adults,
(d) to provide advice and general assistance to the public about matters relating to
the abuse, neglect and exploitation of adults with disability and older adults,
including referrals to independent advocacy services, where appropriate,
(e) to inquire into and report on systemic issues relating to the protection and
promotion of the rights of adults with disability and older adults or the abuse,
neglect or exploitation of adults with disability or older adults,
(f) to consult with the Board on matters relating to the abuse, neglect and
exploitation of adults with disability and older adults that the Commissioner
considers appropriate,
(g) to advise, and make recommendations to, the Minister, at the Commissioner's
own initiative or at the request of the Minister, on matters relating to the abuse,
neglect and exploitation of adults with disability and older adults,
(h) to monitor, assess and report on the New South Wales implementation of the
National Disability Strategy (NDS).
(2) The Commissioner has any other functions that are conferred or imposed on the
Commissioner by or under this or any other Act.
(3) The Commissioner is not subject to the control or direction of the Minister.
13 Reports may be made to Commissioner
(1) A person may make a report to the Commissioner about the following:
(a) an adult with disability or older adult if the person has reasonable grounds to
believe the adult is subject to, or at risk of, abuse, neglect or exploitation,
(b) circumstances that the person has reasonable grounds to believe will result in
the abuse, neglect or exploitation of an adult with disability or older adult.
(2) Without limiting subsection (1), an adult with disability or older adult may make a
report to the Commissioner if the adult has reasonable grounds to believe the adult is
subject to, or at risk of, abuse, neglect or exploitation.
(3) A report does not need to be in writing.
(4) If a person, acting in good faith, makes a report to the Commissioner in accordance
with this section, that person is not liable to any civil or criminal action, or any
disciplinary action, for making the report.
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Part 3 Functions of Commissioner
(5) The Commissioner may do any one or more of the following in respect of a report:
(a) conduct an investigation,
(b) make a referral to another person or body,
(c) decline to take action on the report.
(6) The Commissioner may, at the Commissioner's own initiative, decide to deal with a
matter as a report under this section if the matter relates to an adult with disability or
older adult that the Commissioner has reasonable grounds to believe is subject to, or
at risk of, abuse, neglect or exploitation.
(7) The Commissioner may make preliminary inquiries for the purposes of deciding how
to deal with a report and may request further information from the person making the
report.
(8) If the Commissioner is of the opinion that a report, or part of a report, constitutes a
complaint that may be made to any of the following persons or bodies, the
Commissioner must refer the report, or the part of the report, to the person or body:
(a) the Health Care Complaints Commission under the Health Care Complaints
Act 1993,
(b) the Commissioner of the Aged Care Quality and Safety Commission under the
Aged Care Quality and Safety Commission Act 2018 of the Commonwealth,
(c) the Commissioner of the NDIS Quality and Safeguards Commission under the
National Disability Insurance Scheme Act 2013 of the Commonwealth,
(d) any other person or body prescribed by the regulations.
(9) If the Commissioner is of the opinion that a report, or part of a report, may provide
evidence of the commission of a criminal offence, the Commissioner must refer the
report, or the part of the report, to the Commissioner of Police or the Director of
Public Prosecutions.
(10) The Commissioner may conduct an investigation of a report that the Commissioner
has referred to another person or body under subsection (8), including in consultation
with the person or body, if the Commissioner is of the opinion that conducting an
investigation may be necessary to protect an adult with disability or older adult from
abuse, neglect or exploitation.
(11) In order to conduct an investigation into an allegation of abuse, neglect or
exploitation of an adult with disability or older adult, the Commissioner must obtain
the consent of the adult, unless the Commissioner is of the opinion that:
(a) the adult is incapable of giving consent despite having been provided with the
appropriate support for the purposes of making such a decision, or
(b) it is not necessary to obtain consent due to the seriousness of the allegation or
the risk to the personal safety of the adult, or
(c) any other circumstances prescribed by the regulations exist.
14 Exchange of information
(1) The Commissioner may provide relevant information to a relevant agency for the
purposes of enabling or assisting the relevant agency:
(a) to provide a service to, or take other action in respect of, an adult with
disability or older adult, or
(b) to make a decision or assessment in relation to the safety, welfare or
well-being of an adult with disability or older adult, or
(c) to take action in respect of the safety, welfare or well-being of adults with
disability or older adults generally.
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Part 3 Functions of Commissioner
(2) A relevant agency may provide relevant information to the Commissioner for the
purposes of enabling or assisting the Commissioner's exercise of its functions.
(3) Without limiting subsection (1), the Commissioner may enter into an arrangement
(an information sharing arrangement) with a relevant agency (or in the case of the
Civil and Administrative Tribunal, the President of the Tribunal) for the purposes of
sharing or exchanging relevant information held by the Commissioner or the agency.
(4) The relevant information held by the Commissioner or a relevant agency that may
be provided under this section, is limited to information concerning the following:
(a) a report under this Act,
(b) the safety, welfare or well-being of an adult with disability or older adult,
(c) the abuse, neglect or exploitation of an adult with disability or older adult,
(d) any other matter prescribed by the regulations.
(5) Under an information sharing arrangement, the Commissioner and the relevant
agency are, despite any other Act or law, authorised:
(a) to request and receive information held by the other party to the arrangement,
and
(b) to disclose information to the other party.
(6) Subsection (5) applies only to the extent that the information is reasonably necessary
to assist in the exercise of functions of the Commissioner under this Act or the
functions of the relevant agency.
(7) This section does not:
(a) require the Commissioner to provide information to a relevant agency only in
accordance with subsection (1), or with an information sharing arrangement,
where that information can otherwise be lawfully provided, or
(b) limit the operation of any other Act or law under which a relevant agency is
authorised or required to disclose information to another person or body.
(8) In this section:
relevant agency means any of the following:
(a) a government sector agency,
(b) the Civil and Administrative Tribunal,
(c) a public health organisation within the meaning of the Health Services Act
1997,
(d) a public hospital within the meaning of the Health Services Act 1997,
(e) a private health facility within the meaning of the Private Health Facilities Act
2007,
(f) any other person or body prescribed by the regulations.
15 Protection of persons who make reports
The identity of a person who makes a report to the Commissioner in good faith, or
information from which the identity of that person could be deduced, must not be
disclosed by any person or body unless the disclosure is:
(a) made with the consent of the person who made the report, or
(b) necessary for the purposes of law enforcement, or
(c) necessary for any other purpose prescribed by the regulations.
Note. It is an offence under section 31 for a person to disclose any information obtained in
connection with the administration or execution of this Act, except in certain circumstances.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 3 Functions of Commissioner
Division 2 Investigations and public inquiries
16 Compulsory attendance at meetings and production of documents
(1) For the purposes of an investigation, the Commissioner may, by notice in writing,
require any person:
(a) to attend a meeting at a time and place specified in the notice, or
(b) to produce, at a time and place specified in the notice, to the Commissioner any
document or thing described in the notice that is in the custody or under the
control of the person and that, in the opinion of the Commissioner, is relevant
to the investigation.
(2) A person must not:
(a) without reasonable excuse, refuse or fail to do anything required of the person
by a notice under this section, or
(b) in response to a notice, make a statement that the person knows is false or
misleading, or
(c) alter, suppress or destroy any document or thing that the person is required by
a notice to produce.
Maximum penalty: 50 penalty units.
(3) A person is not required to produce a document under this section if the document
was prepared for the dominant purpose of Part 4 of the Private Health Facilities Act
2007.
17 Search warrants
(1) For the purposes of an investigation, the Commissioner may apply to an authorised
officer within the meaning of the Law Enforcement (Powers and Responsibilities)
Act 2002 for a search warrant if the Commissioner has reasonable grounds for
believing that there is on any premises an adult with disability or older adult who is
subject to, or at risk of, serious abuse, neglect or exploitation.
(2) An authorised officer to whom an application is made may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant authorising the
Commissioner, or a member of the Commissioner's staff named in the warrant, to
enter the premises specified in the warrant and do any or all of the following:
(a) examine and inspect any part of the premises for evidence of abuse, neglect or
exploitation of an adult with disability or older adult,
(b) take any photographs, films, audio, video or other recordings as the
Commissioner or staff member considers necessary,
(c) require documents to be produced for inspection,
(d) examine and inspect any documents,
(e) copy or take notes from any documents,
(f) for the purpose of further examination, take possession of, and remove, any
documents or other things,
(g) require the owner or occupier of the premises to provide the Commissioner (or
staff member named in the warrant) with any assistance or facilities that are
reasonably necessary to enable the Commissioner or staff member to conduct
an investigation,
(h) require any person in or about the premises to answer questions or otherwise
provide information.
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Part 3 Functions of Commissioner
(3) If the person executing a warrant under this section is accompanied by a relevant
health practitioner, the relevant health practitioner may inspect the premises and
observe and speak with any adult with disability or older adult apparently residing at
the premises and may, with the consent of the adult concerned (in circumstances
where the adult has been provided with the appropriate support for the purposes of
making such a decision), examine the adult.
(4) If the Commissioner, or a member of the Commissioner's staff named in the warrant,
removes any goods from the premises when executing a warrant under this section,
the Commissioner or staff member must provide a written receipt to the person
apparently in charge of the premises.
(5) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
Note. Under Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act
2002, a person may execute a search warrant with the aid of any assistants the person
considers necessary (including a police officer or health practitioner).
(6) In this section, relevant health practitioner means a medical practitioner or other
health practitioner of a class prescribed by the regulations.
18 Restrictions on providing information
Except as provided by the regulations, a provision of any other Act or law (whether
enacted or made before or after the commencement of this section) that prohibits or
restricts the disclosure of information does not operate to prevent the provision of
information (or affect a duty to provide information) to the Commissioner under this
Division.
19 Public inquiries
(1) For the purposes of an investigation of a report, the Commissioner may conduct a
public inquiry, if the Commissioner is of the opinion that a public inquiry is in the
public interest, having regard to:
(a) the seriousness of the allegation of abuse, neglect or exploitation, and
(b) the wishes of any person with disability or older adult to whom the report
relates, and
(c) the privacy of the persons who will be affected by a public inquiry.
(2) For the purpose of conducting a public inquiry under this section, the Commissioner
has the functions, protections and immunities conferred on a commissioner by
Division 1 of Part 2 of the Royal Commissions Act 1923.
(3) The provisions of the Royal Commissions Act 1923 (except section 13 and Division
2 of Part 2) apply, with necessary modifications, to a public inquiry and to any
witness or person summoned by or appearing before the public inquiry or providing
material to the inquiry, but section 11 (2) of that Act shall have effect subject to
subsection (4).
(4) Nothing in this section requires any person to give any statement of information,
answer any question or disclose any document if the person can claim privilege not
to do so.
(5) A witness summoned by or appearing before the Commissioner is to be paid such
amount as the Commissioner determines, but not exceeding the amount that would
be payable to a witness that is a Crown witness subpoenaed by the Crown to give
evidence.
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Part 3 Functions of Commissioner
(6) For the purpose of conducting a public inquiry under this section, the Commissioner
is not bound by the rules of evidence and may be informed on any matter in issue at
the public inquiry in such manner as the Commissioner considers appropriate.
(7) The Commissioner may give directions as to the procedure to be followed at or in
connection with the inquiry.
(8) The Commissioner may appoint an Australian legal practitioner to assist the
Commissioner for the purposes of an inquiry held by the Commissioner and the
Australian legal practitioner may appear before the inquiry.
(9) In this section:
disclosure of a document includes the provision of copies of the document, the
granting of access to the document or the disclosure of the contents of the document.
document includes a part of a document.
privilege means privilege based on a claim by a person that evidence or other
information about a matter or document:
(a) might tend to incriminate the person or make the person liable to any forfeiture
or penalty, or
(b) could not be required to be adduced in proceedings before a New South Wales
court by reason of the operation of Part 3.10 (Privileges) of Chapter 3 of the
Evidence Act 1995.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 4 Official Community Visitors
Part 4 Official Community Visitors
20 Definitions
In this Part:
assisted boarding house has the same meaning as it has in the Boarding Houses Act
2012.
service provider means:
(a) the Minister, or
(b) a person or organisation funded, authorised or licensed by the Minister to
provide an accommodation service, or
(c) the owner or occupier of premises that are an assisted boarding house, or
(d) an implementation company under the National Disability Insurance Scheme
(NSW Enabling) Act 2013 while the company is a public sector agency of the
State under that Act, or
(e) any other person or organisation prescribed by the regulations.
visitable service means:
(a) an accommodation service where an adult with disability or older adult using
the service is in the full-time care of the service provider, or
(b) an assisted boarding house, or
(c) any other service prescribed by the regulations as a visitable service.
21 Appointment of Official Community Visitors
(1) The Minister may, on the recommendation of the Commissioner, appoint a person as
an Official Community Visitor if the person, in the opinion of the Minister:
(a) has appropriate knowledge and expertise in matters relating to adults with
disability or older adults, and
(b) has a commitment to the objects and principles of this Act and the following
Acts:
(i) Boarding Houses Act 2012,
(ii) Community Services (Complaints, Reviews and Monitoring) Act 1993,
(iii) Community Welfare Act 1987,
(iv) Disability Inclusion Act 2014,
(v) Guardianship Act 1987,
(vi) National Disability Insurance Scheme Act 2013 of the Commonwealth,
and
(c) has skills in the solving of problems about access to, and the use of, services
by adults with disability or older adults, and
(d) is not employed within the Department of Family and Community Services
and Justice.
(2) An Official Community Visitor holds office for the term, not exceeding 3 years,
specified in the instrument of appointment, but is eligible for re-appointment.
(3) A person may not be appointed as an Official Community Visitor for consecutive
terms totalling more than 6 years.
(4) The provisions of the Government Sector Employment Act 2013 relating to the
employment of Public Service employees do not apply to an Official Community
Visitor.
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Part 4 Official Community Visitors
(5) The Minister may, on the recommendation of the Commissioner, remove an Official
Community Visitor from office, but only for incompetence, incapacity or
misbehaviour.
(6) Despite subsection (5), an Official Community Visitor who has a disability (other
than mental incapacity) may not be removed from office on the ground of incapacity
unless the disability renders the Official Community Visitor incapable of performing
the functions of an Official Community Visitor.
22 Functions of Official Community Visitors
(1) An Official Community Visitor may do any of the following:
(a) at any reasonable time, enter and inspect premises at which a visitable service
is provided,
(b) confer alone with any person who is resident or employed at the premises,
(c) inspect any document held at the premises that relates to the operation of a
visitable service (having regard to the wishes of any person resident at the
premises to whom the document relates),
(d) provide the Minister and the Commissioner with advice or information
relating to the conduct of the premises,
(e) inform the Minister and the Commissioner on matters affecting the welfare,
interests and conditions of persons using visitable services,
(f) encourage the promotion of legal and human rights of persons using visitable
services, including the right to privacy, confidentiality, adequate information
and consultation in relation to those services and the right to complain,
(g) consider matters raised by persons using visitable services, staff of providers
of visitable services and people having a genuine concern for the welfare,
interests and conditions of persons using visitable services,
(h) provide information to persons using visitable services about independent
advocacy services available to help them with grievances or concerns and, in
appropriate cases, to assist a person to obtain those advocacy services,
(i) facilitate, wherever it is reasonable and practicable to do so, the early and
speedy resolution of grievances or concerns affecting persons using visitable
services by referring those grievances or concerns to the providers of the
relevant services or to other appropriate bodies,
(j) exercise any other functions prescribed by the regulations.
(2) An Official Community Visitor must, in exercising a function under this section, act
in a manner that preserves, as far as possible, the privacy of each person resident at
the premises at which a visitable service is provided.
(3) The Commissioner may deal with a matter arising out of any advice or information
provided by an Official Community Visitor as if it were a report made under section
13.
23 Co-ordination of Official Community Visitors
(1) The Commissioner has a general oversight and co-ordination role in relation to
Official Community Visitors and may determine priorities for the services to be
provided by Official Community Visitors.
(2) The Commissioner may convene meetings of Official Community Visitors and take
other action that is necessary for the exercise of the Commissioner's functions under
this section.
(3) At least one meeting is to be held in each calendar year.
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Part 4 Official Community Visitors
24 Protection against retribution
(1) A person must not take or threaten to take detrimental action in respect of a person
because that person (or any other person) makes, or proposes to make, a complaint
to an Official Community Visitor.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) It is a defence to a prosecution for an offence under this section if it is proved that:
(a) the complaint was made or proposed in bad faith, or
(b) any material allegation was known by the person making it to be false.
(3) In this section:
complaint includes providing information, documents or evidence to an Official
Community Visitor.
detrimental action means action causing, comprising or involving any of the
following:
(a) injury, damage or loss,
(b) intimidation or harassment,
(c) discrimination, disadvantage or adverse treatment in relation to employment,
(d) dismissal from, or prejudice in, employment,
(e) prejudice in the provision of a service,
(f) disciplinary proceedings.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 5 Annual reports and special reports
Part 5 Annual reports and special reports
25 Annual reports to Parliament
(1) The Commissioner is required to prepare, within the period of 4 months after 30 June
in each year, a report on the activities of the Commissioner, and the activities of the
Official Community Visitors, during the year ended on that 30 June and to provide
the report to the Presiding Officer of each House of Parliament.
(2) The Commissioner may, but is not required to, prepare the annual report on the
activities of the Official Community Visitors as a separate annual report under this
section.
(3) An annual report by the Commissioner must include information about the number
of referrals made by the Commissioner under section 13 and the outcome of each
referral.
(4) An annual report prepared under subsection (1) must include the following:
(a) any recommendations for administrative action or changes in the laws of the
State that the Commissioner considers necessary,
(b) information on the number of reports made to, and actioned by, the
Commissioner, and the number of referrals made elsewhere and to whom,
(c) the number of investigations held under section 13 (11) where consent was not
given, including as a percentage of total investigations held,
(d) if a Board member has been removed under section 29 (9) during the reporting
period, the reasons for removing the member.
26 Report about disability advocacy
(1) The Commissioner must, by 31 December 2019:
(a) prepare a report in relation to the funding arrangements for independent
specialist advocacy, information and representative organisations for people
with disability in New South Wales, and
(b) consult with independent specialist advocacy, information and representative
organisations for people with disability in New South Wales in relation to the
report, and
(c) provide the report to the Presiding Officer of each House of Parliament.
(2) For the purposes of subsection (1), in preparing the report the Commissioner must
take into account any funding provided by the Commonwealth, under the National
Disability Insurance Scheme Act 2013 of the Commonwealth, to independent
specialist advocacy, information and representative organisations for people with
disability in New South Wales.
(3) Before providing the report to the Presiding Officer of each House of Parliament, the
Commissioner must give a copy of the report to the Minister.
27 Special reports to Parliament and to Minister
(1) The Commissioner may, at any time, prepare a special report on any matter relating
to the functions of the Commissioner and provide the special report to the Presiding
Officer of each House of Parliament.
(2) Before providing a special report to the Presiding Officer of each House of
Parliament, the Commissioner is to provide a copy of the special report to the
Minister.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 5 Annual reports and special reports
(3) The Commissioner is to prepare a special report for the Minister on any matter
requested by the Minister and must provide the special report to the Presiding Officer
of each House of Parliament.
28 Provisions relating to reports
(1) A copy of a report provided to the Presiding Officer of a House of Parliament under
this Part must be laid before that House within 5 sitting days of that House after it is
received by the Presiding Officer.
(2) If a report includes a recommendation by the Commissioner that the report be made
public immediately, the Presiding Officer of a House of Parliament may make it
public whether or not that House is in session and whether or not the report has been
laid before that House.
Page 16
Ageing and Disability Commissioner Bill 2019 [NSW]
Part 6 Miscellaneous
Part 6 Miscellaneous
29 Ageing and Disability Advisory Board
(1) There is to be an Ageing and Disability Advisory Board.
(2) The function of the Board is to advise the Commissioner on any matter that the Board
considers appropriate or that is referred to the Board by the Commissioner.
(3) The Board is to consist of the Commissioner and persons appointed by the
Commissioner who, in the opinion of the Commissioner have relevant knowledge of
and experience in matters relating to adults with disability and older adults (the
appointed members).
(4) The Minister must ensure that the composition of the Board reflects the diversity of
the community, and include the following:
(a) 2 or more persons with disability,
(b) a representative of independent specialist advocacy, information and
representative organisations for people with disability in New South Wales,
(c) a representative of independent specialist advocacy, information and
representative organisations for older adults in New South Wales,
(d) 1 or more persons representing persons employed in the provision of disability
services or services for older adults.
(5) An appointed member is to be appointed to the Board for a period of 3 years or less
and may be re-appointed.
(6) The Board is to elect a chairperson and deputy chairperson from the appointed
members.
(7) The procedure for the calling of meetings of the Board and for the conduct of those
meetings is to be determined by the Commissioner.
(8) An appointed member is entitled to be paid the fees and allowances (if any) that the
Commissioner may from time to time determine for the member.
(9) The Commissioner may remove an appointed member from the Board at any time
and must provide a report on the removal to the Presiding Officer of each House of
Parliament.
30 Personal liability
(1) A matter or thing done or omitted to be done by any of the following persons does
not, if the matter or thing was done or omitted to be done in good faith for the
purposes of executing this Act, subject the person so acting personally to any action,
liability, claim or demand:
(a) the Commissioner,
(b) a member of the staff of the Commissioner,
(c) a person acting under the direction of the Commissioner,
(d) an Official Community Visitor,
(e) a member of the Board.
(2) However, the liability attaches instead to the Crown.
31 Disclosure of information
A person must not disclose any information obtained in connection with the
administration or execution of this Act unless that disclosure is made:
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 6 Miscellaneous
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any
report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty: 50 penalty units.
32 Obstruction of Commissioner
A person must not, without reasonable excuse, resist or obstruct the Commissioner
or other person in the exercise of a function under this Act.
Maximum penalty: 50 penalty units.
33 Proceedings for offences
Proceedings for an offence under this Act may be dealt with summarily before the
Local Court.
34 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative
power of the Parliament of New South Wales permits, the Crown in all its other
capacities.
35 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) In particular, the regulations may make provision for or with respect to reports,
including:
(a) the procedure for making a report to the Commissioner, and
(b) the manner in which the Commissioner is to deal with a report, and
(c) the grounds on which the Commissioner may decline to take action on a report.
(3) The regulations may also contain provisions of a savings or transitional nature
consequent on the enactment of this Act or any Act that amends this Act.
(4) A provision of a savings or transitional nature may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later date.
(5) To the extent to which a provision of a savings and transitional nature takes effect
from a date that is earlier than the date of its publication on the NSW legislation
website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Part 6 Miscellaneous
36 Independent review of Act
(1) The Minister is to commission an independent review of the Act to determine
whether the policy objectives of the Act remain valid and whether the terms of the
Act remain appropriate for securing those objectives.
(2) A report on the outcome of the review is to be tabled in each House of Parliament
before 1 July 2022.
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Ageing and Disability Commissioner Bill 2019 [NSW]
Schedule 1 Amendment of Acts
Schedule 1 Amendment of Acts
1.1 Community Services (Complaints, Reviews and Monitoring) Act 1993
No 2
[1] Section 8 Functions of Official Community Visitors
Omit paragraphs (b) and (c) of the definition of visitable service in section 8 (6).
Insert instead:
(b) a service prescribed by the regulations as a visitable service,
but does not include a visitable service within the meaning of Part 4 of the
Ageing and Disability Commissioner Act 2019.
[2] Section 35 Application of Part
Omit "residential care provided by a service provider" from section 35 (1) (f).
Insert instead "supported group accommodation".
[3] Section 35 (2)
Insert in alphabetical order:
supported group accommodation has the same meaning as it has in the
Disability Inclusion Act 2014.
Note. This includes, for example, supported group accommodation provided by a
registered provider under the National Disability Insurance Scheme Act 2013 of the
Commonwealth.
1.2 Coroners Act 2009 No 41
[1] Section 24 Jurisdiction concerning deaths of children and disabled persons
Omit "residential care provided by a service provider and authorised or funded under the
Disability Inclusion Act 2014" from section 24 (1) (e).
Insert instead "supported group accommodation".
[2] Section 24 (3)
Insert in alphabetical order:
supported group accommodation has the same meaning as it has in the
Disability Inclusion Act 2014.
Note. This includes, for example, supported group accommodation provided by a
registered provider under the National Disability Insurance Scheme Act 2013 of the
Commonwealth.
[3] Section 36 State Coroner to inform Ombudsman and others about certain child and
disability deaths
Omit ", in accordance with subsection (2)," from section 36 (1).
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Ageing and Disability Commissioner Bill 2019 [NSW]
Schedule 1 Amendment of Acts
[4] Section 36 (1A)
Insert after section 36 (1):
(1A) The State Coroner is to provide the Commissioner of the NDIS Quality and
Safeguards Commission under the National Disability Insurance Scheme Act
2013 of the Commonwealth with all relevant material held by the State
Coroner relating to any death or suspected death of a person in the
circumstances referred to in section 24 (1) (e) or (f).
[5] Section 36 (2)
Omit "referred to in subsection (1)".
1.3 Government Information (Public Access) Act 2009 No 52
Schedule 2 Excluded information of particular agencies
Insert at the end of clause 2:
The office of Ageing and Disability Commissioner--report handling,
investigative and reporting functions (including any functions of the
Commissioner relating to Official Community Visitors appointed under the
Ageing and Disability Commissioner Act 2019).
1.4 Government Sector Employment Act 2013 No 40
Schedule 1 Public Service agencies
Insert in appropriate order in Part 3:
Office of the Ageing and Disability *Ageing and Disability Commissioner
Commissioner
1.5 Health Records and Information Privacy Act 2002 No 71
Section 4 Definitions
Insert after paragraph (g) of the definition of investigative agency in section 4 (1):
(g1) the Ageing and Disability Commissioner,
1.6 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search Warrants under other Acts
Insert in alphabetical order:
Ageing and Disability Commissioner Act 2019, section 17
1.7 Privacy and Personal Information Protection Act 1998 No 133
[1] Section 3 Definitions
Insert after paragraph (a) (vii) of the definition of investigative agency in section 3 (1):
(viia) the Ageing and Disability Commissioner,
[2] Section 28 Other exemptions
Insert ", Ageing and Disability Commissioner" after "Anti-Discrimination Board" in
section 28 (1).
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