Ageing and Disability Commissioner Act 2019

This Act is the Ageing and Disability Commissioner Act 2019.

This Act commences on 1 July 2019, except as provided by subsection (2).

Part 4 and Schedule 1.1 [1] commence on a day or days to be appointed by proclamation.

In this Act—

Board means the Ageing and Disability Advisory Board established under section 29.

Commissioner means the Ageing and Disability Commissioner appointed under section 5.

Department means the Department in which this Act is administered.

detrimental action means action causing, comprising or involving 1 or more of the following—

injury, damage or loss,

intimidation or harassment,

discrimination, disadvantage or adverse treatment in relation to employment,

dismissal from, or prejudice in, employment,

prejudice in the provision of a service,

disciplinary proceedings.

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 local council.

investigation means an investigation of a report conducted by the Commissioner under Part 3.

joint committee means the Committee on Ageing and Disability constituted under section 28A.

NDIS Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Official Community Visitor means an Official Community Visitor appointed under section 21.

older adult means a person who is aged—

50 years or over, in the case of an Aboriginal or Torres Strait Islander person, or

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.

Notes included in this Act do not form part of this Act.

The objects of this Act are—

to protect and promote the rights of adults with disability and older adults, and

to protect adults with disability and older adults from abuse, neglect and exploitation.

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—

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,

adults with disability and older adults have the right to respect for their cultural and linguistic diversity, age, gender, sexual orientation and religious beliefs,

adults with disability and older adults have the right to privacy and confidentiality,

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,

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.

When exercising a function under this Act, the Commissioner or any other person must have regard to the following—

adults with disability and older adults may face multiple disadvantages and are potentially more vulnerable to abuse, neglect and exploitation,

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—

women,

Aboriginal and Torres Strait Islander adults,

gay, lesbian, bisexual, transgender and intersex communities,

adults from culturally and linguistically diverse backgrounds,

adults living in regional and remote areas.

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.

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.

The Governor may appoint an Ageing and Disability Commissioner.

The Commissioner holds office for the term, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re-appointment.

A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).

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.

The employment of the Commissioner is (subject to this Act) to be governed by a contract of employment between the Commissioner and the Minister.

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)—

provisions relating to the band in which an executive is to be employed,

provisions relating to the contract of employment of an executive,

provisions relating to the remuneration, employment benefits and allowances of an executive.

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.

The office of Commissioner becomes vacant if the Commissioner—

dies, or

completes a term of office and is not re-appointed, or

resigns the office by instrument in writing addressed to the Minister, or

is removed from office by the Governor under section 8, or

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

becomes a mentally incapacitated person, or

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

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.

If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.

The Governor may remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour.

The Commissioner cannot be removed from office under Part 6 of the Government Sector Employment Act 2013.

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.

A person, while acting as Commissioner, has and may exercise the functions of the Commissioner and is taken to be the Commissioner.

The Minister may, at any time, remove a person from office as acting Commissioner.

An acting Commissioner is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine.

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.

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.

The Commissioner has the following functions—

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,

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,

to raise awareness and educate the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults,

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,

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,

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,

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,

to monitor, assess and report on the New South Wales implementation of Australia’s Disability Strategy 2021–2031.

The Commissioner has any other functions that are conferred or imposed on the Commissioner by or under this or any other Act.

The Commissioner is not subject to the control or direction of the Minister.