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1
Community Services Bill 2006
Community Services Bill 2006
Explanatory Notes
Title of the Bill
Community Services Bill 2006
General Outline
Objective of the Bill
The primary objective of the Community Services Bill 2006 (the Bill) is to
help build sustainable communities by facilitating access by Queenslanders
to community services.
Achievement of the policy objectives
Most Queenslanders will use community services in one form or another at
some stage in their lives. The Department of Communities currently
provides funding to approximately 860 community organisations under the
Family Services Act 1987 (FSA). Funded organisations provide a range of
services from neighbourhood centres, community safety services and
support for seniors, young people and homeless people, through to services
in areas such as youth justice and domestic and family violence prevention.
The FSA is jointly administered by the Minister for Communities,
Disability Services and Seniors, and the Minister for Child Safety. No
significant changes have been made to the funding sections of the Act since
it took effect 19 years ago. The FSA is dated in style and content and does
not reflect the contemporary relationship that exists between the
Department of Communities and community organisations. The FSA also
lacks transparency, in that it does not identify who makes what decisions,
nor does it clearly state how the department can ensure strong performance
by funded community organisations and quality outcomes for clients.
Community organisations play a vital role in helping to maintain the wellbeing
of Queensland communities. It is essential that the systems and processes for
giving organisations assistance are based on clear, comprehensive and up-to-
date legislation.
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Community Services Bill 2006
The Bill provides a contemporary legal basis for the Department of
Communities to give assistance to community organisations. The object
and guiding principles clarify how the department and community
organisations can work together to provide quality services for
Queenslanders.
Greater transparency and certainty about how funding and other assistance
can be given to community organisations by the department is provided by
the Bill-
� establishing a process for community organisations to become eligible
for assistance; and
� clearly identifying the types of assistance that can be provided to
community organisations, and when and how this assistance may
occur.
The Bill also ensures there is clarity and certainty about meeting
community expectations about the quality, safety and accountability of
service delivery by:
� providing for Standards for Community Services to be made under a
regulation - these Standards will set out the department's minimum
expectations of services provided with assistance; and
� establishing a monitoring and enforcement framework with
progressively stronger options for dealing with serious concerns about
a funded organisation's service delivery.
An up-to-date process for internal and external reviews of significant
decisions made by the department is set out in the Bill, to ensure fair
processes are in place to protect the rights of parties to significant
decisions, and improve the quality, clarity and accountability of decision-
making by the department. The Bill maintains the current authorisation for
the department to conduct criminal history checks of people it engages, and
includes safeguards for the confidentiality and use of screening
information.
The Bill has been developed by the department as a key initiative of the
Strengthening Non-Government Organisations Strategy. The Strategy is a
partnership between the Queensland Government and the non-government
community services sector to strengthen the quality of community services
delivery. The Bill has been designed to be consistent with other
contemporary human services legislation, such as the Housing Act 2003
and the Disability Services Act 2006. The department intends to use the
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Community Services Bill 2006
proposed new legislation as the basis for giving assistance to community
organisations.
Assessment of administrative cost to government
Implementation costs of the Bill will include providing resources for:-
� communication and awareness raising with key stakeholders;
� updating existing documents and policies, and developing new
documents, policies, procedures, notices and forms to support the new
legislation;
� training departmental staff to enable them to undertake roles and
responsibilities relevant to the new legislation;
� appointing and training authorised officers to carry out monitoring,
compliance and investigation functions; and
� developing protocols for internal reviews of decisions.
All costs will be met from within the existing budget for the Department of
Communities.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative principles
issues are outlined below.
Power to appoint an interim manager (Part 7)
Under the performance management provisions of the Bill, it is proposed to
empower the chief executive to appoint an interim manager for the
assistance provided by the department to a community services
organisation. The interim manager's function is to ensure the service
provider's compliance with the prescribed standards, the proper and
efficient use of departmental funds or assets, and the terms of the service
agreement.
It could be argued that the exercise of these powers affects the rights and
liberties of employees and officers of the service provider, in addition to
third parties such as creditors.
The principal objective of the legislative scheme is to ensure the provision
of sustainable, quality, safe, responsive and accountable services acquired
through the provision of public funds. Consistent with other contemporary
community services legislation, such as the Disability Services Act 2006,
the chief executive is only empowered to appoint an interim manager as a
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Community Services Bill 2006
last resort, after considering other remedies. The proposed powers will
enable the department to intervene where ongoing breaches by providers
threaten the safety of vulnerable clients or give rise to serious concerns
about the proper use of assistance provided by the department.
A number of safeguards against inappropriate use of the power to appoint
an interim manager are provided in the Bill. These include imposing a
limit on the period for which an interim manager may be appointed, and
enabling the Commercial and Consumer Tribunal to conduct external
merits-based reviews of decisions to appoint interim managers.
Criminal history screening (Part 9)
The current criminal history screening provisions of the FSA enable the
chief executive to obtain a prospective or current employee's full criminal
history, regardless of the Criminal Law (Rehabilitation of Offenders) Act
1986.
The power to access a person's criminal history may be regarded as
adversely affecting an individual's privacy.
The current provisions enable the chief executive to have a more complete
picture of an applicant's criminal history, including information about `old'
convictions which may indicate a pattern of behaviour that could
compromise the applicant's ability to undertake departmental duties safely
and competently. This approach is considered necessary to protect the
safety of vulnerable clients and to ensure an adequate level of probity for
the employment of departmental employees. For example, departmental
employees may work in youth justice or childcare licensing settings, or
manage the performance of service providers.
While the Bill makes provision for an applicant's criminal history to be
taken into account by the chief executive, the possession of a criminal
history does not necessarily make an applicant ineligible for employment.
The Bill also ensures natural justice is observed by providing the applicant
with an opportunity to make a submission to the chief executive on the
assessment of the applicant's suitability.
Power to require information or documents (clause 59)
The Bill establishes a power for authorised officers to require information
or documents from a person for information gathering and enforcement
purposes, and creates an offence for failure to comply with such a request
without a reasonable excuse. The Bill also allows a court to order a person
to give the chief executive information or documents within a stated time
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Community Services Bill 2006
and in a stated manner if the court convicts a person for an offence against
this provision. These powers can be exercised in relation to third parties,
and for this reason, may be considered to have insufficient regard to the
rights and liberties of individuals.
This power will enable the department to obtain information in order to
ascertain whether a breach of the Act has occurred. The power can only be
exercised in relation to the use of assistance provided under the Act to a
funded service provider, and the power may only be used for monitoring or
enforcing compliance with the Act, or ensuring the proper and efficient
delivery of community services.
The Bill also provides that a person who has a reasonable excuse for not
complying with a requirement to provide information or documents does
not commit an offence against the Act. Under clause 59(6) of the Bill, an
individual has a reasonable excuse for failing to comply with a requirement
to provide information or documents if complying with the requirement
might tend to incriminate them.
The ability to undertake investigations with the support of corroborating
evidence from third parties will assist the department to make informed
decisions about whether sufficient grounds exist to justify taking
compliance action. Without a power to obtain corroborating evidence from
third parties, the department's capacity to monitor and enforce compliance
with the legislation would be severely impeded.
Requirement for executive officers to ensure corporation complies with Act
(clause 121)
The Bill includes an offence provision imposing a positive obligation on
executive officers to ensure their corporation complies with the provisions
of the Bill. This is modelled on section 91 of the Housing Act 2003 and
sections 205 and 206 of the Disability Services Act 2006.
The provision is proposed to act as a general deterrent and sanction for
corporations in a worst case scenario. Otherwise, the department has no
mechanism to safeguard a person in circumstances where the corporation
(and not the individual) has committed an offence. The section is not
imposing any additional obligations on executive officers. Given the
vulnerable nature of many service users and the use of public funds, it is
important to emphasise this responsibility. Reasonable defences are
included to protect executive officers and prevent the misapplication of the
provision.
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Community Services Bill 2006
Consultation
Extensive consultation on the Strengthening Non-Government
Organisations (NGOs) Strategy initiatives, which are supported by the
proposed legislation, occurred through statewide information and
engagement sessions held from August to October 2005.
More recently, targeted regional forums were held across the State in April
2006 with key representative organisations and local governments funded
by the department. Participants included a diverse cross-section of
community organisations from remote, regional and metropolitan
locations, and Indigenous-managed organisations.
Consultation was also undertaken online via the Queensland Government's
`ConsultQld' website, and advertised in the local press and on the National
Indigenous Radio Network. The approximately 860 community
organisations currently receiving funding from the department were also
advised by mail of the consultation.
The purpose of consultation was to seek feedback about whether the
proposed legislation would achieve its intended outcomes and provide a
clear guide for the community services sector.
Consultation was also undertaken with the Strengthening NGOs Reference
Group, which includes representatives of the peak organisations and non-
government organisations, such as the Queensland Council of Social
Service (QCOSS).
Notes on Provisions
Part 1 Preliminary
Division 1 Introduction
Short Title
Clause 1 provides that the short title of the Bill is the Community Services
Act 2006.
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Community Services Bill 2006
Commencement
Clause 2 provides that the Bill commences on a day to be fixed by
proclamation. This delayed commencement is to allow sufficient time for
complimentary administrative arrangements to be made and for promotion
and awareness raising of the Bill. It is proposed to commence the Bill by
the end of 2006.
Division 2 Objects and principles
Main object of Act
Clause 3 provide for the main object of the Bill.
How main object is mainly achieved
Clause 4 provides for the way in which the main object of the Bill is to be
mainly achieved.
Guiding principles
Clause 5 provides that the Act is to be administered in a way that has
sufficient regard to the guiding principles.
The clause includes an editor's note to clarify the meaning of the terms
`Aboriginal tradition' and `Island custom' which are referred to in the
principles, and are defined in the Acts Interpretation Act 1954. It is
unusual to set out provisions from the Acts Interpretation Act. However,
these terms are considered essential to the administration of the Act, and it
is imperative that they be read by the community services sector to take
their full meaning.
Division 3 Interpretation
This division sets out three key definitions that are central to the operation
of the Bill. It also refers to other definitions contained in a schedule.
Definitions
Clause 6 provides that schedule 4 defines particular words used in the Bill.
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Community Services Bill 2006
Meaning of service provider
Clause 7 provides for the meaning of a `service provider'. It clarifies that a
corporation providing services for profit may still be a service provider.
Meaning of approved service provider
Clause 8 provides for the meaning of an `approved service provider'.
Meaning of funded service provider
Clause 9 provides for the meaning of a `funded service provider'. It
clarifies that a funded service provider may put funds or resources from
other sources into community services (including the community service
being assisted).
Part 2 Approved service providers
The intention of this part is to streamline administrative processes.
The process is designed to ensure that assistance is provided to those
agencies that have the organisational capacity and infrastructure to provide
accountable, sustainable and viable community services.
The funding framework in the Bill has two main elements:
(i)a pre-approval process before the service provider is eligible to receive
assistance (part 2);
(ii)a strengthened contractual framework (part 3).
Service providers will need to be given an approved service provider status
under this part before they may apply for or receive funding or other
assistance from the department. However, being eligible for funding does
not guarantee funding.
Provisions are also included to ensure flexibility in urgent situations
(clause 22) and for one-off funding (clause 23).
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Community Services Bill 2006
Division 1 Preliminary
Explanation
Clause 10 explains that this part establishes how the chief executive may
approve service providers that are corporations as eligible to receive
assistance from the department.
No entitlement to assistance
Clause 11 provides that the Minister is not required to approve assistance
for an approved service provider. This provision makes it clear that
agencies who are approved service providers (under this part) are eligible
for assistance, but not guaranteed assistance.
Division 2 Approval process
Application for approval
Clause 12 provides for the application process for becoming an approved
service provider.
The service provider must be incorporated, and the application must be in a
form approved by the chief executive. The chief executive may require the
service provider to provide other relevant information. For example, a new
organisation, without a record of financial management, may be asked to
provide information about how it proposes to manage its finances.
Decision on application
Clause 13 requires the chief executive to decide the application within 90
days after the application and other required information is received. The
chief executive must then give notice of the decision to the service
provider.
The chief executive may approve only if:
� the service provider provides, or intends to provide, community
services; and
� the approval is consistent with the object and guiding principles of the
Bill.
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Community Services Bill 2006
For example, if an incorporated association provides community services
but has in its rules a clause inconsistent with the guiding principles, the
chief executive should decide to reject the application.
In deciding the application, the chief executive may have regard to
following criteria:
� the business, strategic or operational plan of the service provider;
� financial records of the service provider;
� how the service provider conducts or intends to conduct its operations;
� appropriate corporate governance structures;
� whether the service provider is receiving funding from another source;
and
� whether the service provider has demonstrated compliance with the
requirements of another Act.
The last two criteria allow cross-recognition. If, for example, a service
provider is already a `funded non-government service provider' under the
Disability Services Act 2006, and can demonstrate compliance with that
Act, the chief executive may deem the service provider to be suitable in
relation to all overlapping criteria.
Also, to ensure the application process is flexible, other criteria can be
placed in a regulation. This will allow the procedure to be easily amended
should changes to practice emerge over time.
Approval remains in force unless cancelled
Clause 14 provides that the status of an approved service provider remains
in force until it is cancelled.
Division 3 Cancellation of approval
Application for cancellation of approval
Clause 15 provides that a corporation may apply to the chief executive to
cancel its approval as an approved service provider. The application must
be in a form approved by the chief executive, and the chief executive may
require the applicant to provide other relevant information.
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Community Services Bill 2006
Decision on application
Clause 16 requires the chief executive to decide the application within 45
days after the application and other required information is received. The
chief executive must then give notice of the decision to the service
provider.
The chief executive may only cancel an approval, on application, if:
� there is no current service agreement with the service provider; and
� it is not likely any action is required to enforce compliance under the
Bill.
The chief executive may also require the service provider to take certain
action before cancellation - for example, returning unspent funds.
Cancellation of approval without application
Clause 17 provides that the chief executive may cancel the approval of an
approved service provider without an application. The chief executive may
only cancel an approval if:
� there is no current service agreement with the service provider; and
� it is not likely any action will be required to enforce compliance under
the Bill and it is not likely further assistance will be provided by the
department.
The clause requires the following process before the chief executive can
cancel an approval:
� A notice must be given to the service provider:
-- stating the intention to cancel;
-- stating the reasons for the proposed cancellation; and
-- inviting the service provider to give a written response within a
stated time of at least 45 days; and
� the chief executive must consider any written response received within
the stated time.
The chief executive must give the service provider immediate notice of the
decision.
This process does not have to be followed if the service provider agrees to
waive the process.
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Community Services Bill 2006
Cancellation of approval if approved service provider no longer
exists
Clause 18 provides that the chief executive must cancel the approval of an
approved service provider if it no longer exists. For example, a service
provider may `no longer exist' if it amalgamates with another entity or if it
is otherwise no longer recognised at law as a legal entity.
Division 4 Notice of changes by approved
service provider
Approved service provider must give notice of change
Clause 19 provides that an approved service provider must give notice to
the chief executive of certain occurrences, within 30 days of becoming
aware of the occurrence. They include:
� a change of the service provider's address;
� certain formal steps that may lead to the service provider ceasing to
exist as a legal entity; and
� certain formal steps that amount to the service provider ceasing to
exist as a legal entity.
Other occurrences can be placed in a regulation.
Part 3 Assistance to service providers
Assistance from the Department of Communities is a two step process:
firstly, the Minister approves funding (clause 21) and secondly, if funding
is approved, the chief executive enters into a written agreement with the
service provider (clause 24).
Purpose of giving assistance
Clause 20 provides that the purpose of giving assistance to service
providers is to enable them to provide community services in ways that
best achieve the object of the Bill.
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Community Services Bill 2006
When assistance may be given
Clause 21 provides that to achieve the object of the Bill, the Minister may
approve assistance to a service provider for community services. A non-
exclusive list of types of assistance is outlined.
Assistance to service providers
Clause 22 provides that the Minister may approve assistance only if the
service provider is an approved service provider under the pre-approval
process in Part 2.
However, the clause allows for `provisional service provider status' in
urgent or emergency situations where it is not practicable to first go
through the pre-approval process. In these cases, assistance can be granted
for a maximum of six months without the service provider having an
`approved service provider' status. In other words, after the assistance
commences, the service provider must take action to become an approved
service provider as soon as practicable; otherwise, funding will cease six
months after it is given.
Who may receive approval for one-off funding
Clause 23 provides that the Minister may approve one-off funding for a
service provider. The only condition is that the service provider must be
incorporated.
No assistance without agreement
Clause 24 provides that, once the Minister approves the assistance, the
chief executive must enter into a written agreement with the service
provider. The chief executive can only provide the assistance once a service
agreement is signed by both parties.
The exception is in urgent cases where it is not practicable to first enter into
an agreement. In this case, assistance can be given if the service provider
agrees in writing to enter into a service agreement within a stated time and
enters into a service agreement within that time. If this does not happen, the
assistance must cease.
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Community Services Bill 2006
What service agreement must contain
Clause 25 provides a transparent legal basis for service agreements. A
service agreement must state each of a number of things considered
relevant by the chief executive.
In addition, the agreement may include other matters the chief executive
considers necessary.
Part 4 Standards for funded service
providers
Standards
Clause 26 provides that a regulation may prescribe standards for the
delivery of community services by a funded service provider. Prescribed
standards may set out requirements about preparing, maintaining,
publishing or implementing policies or procedures, or reporting matters to
the chief executive of the department in relation to:-
(1) accessibility of services;
(2) responsiveness of services to the needs of individuals, families
and communities;
(3) choice and participation by service users;
(4) respect for the confidentiality and privacy of service users;
(5) managing feedback and complaints;
(6) safety and wellbeing of service users;
(7) recruitment and selection of staff;
(8) induction, training and development of staff;
(9) staff performance and volunteer support;
(10) corporate governance; and
(11) financial management and accountability.
Minister may exempt from compliance with standard
Clause 27 allows the Minister to exempt a service provider from the
application of a standard, where it is not relevant (for example, a small one-
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Community Services Bill 2006
off grant for a promotional activity). The exemption may be subject to
conditions and be limited in its application. The Minister may give notice
of an exemption to the service provider.
Funded service provider must not contravene standards
Clause 28 requires funded service providers to comply with a standard, or
part of a standard. The following may be consequences of contravening a
standard:
� a compliance notice could be issued requiring the service provider to
fix the contravention (clause 30); or
� the extent of compliance or contravention could be a relevant factor
when deciding whether further funding is provided; or
� non-compliance with certain types of prescribed requirements could
lead to the appointment of an interim manager (clause 68); or
� non-compliance may be a matter that the chief executive considers when
deciding whether to cancel the approval of an approved service provider.
Part 5 Compliance notices and
suspending or stopping
assistance
Division 1 Compliance notices
Cooperative approach
Clause 29 clarifies that the powers which may be exercised under Part 5 in
relation to issuing compliance notices and suspending or stopping
assistance do not limit or prevent the department adopting a cooperative
approach to resolving concerns about service delivery.
Compliance notice
Clause 30 introduces and lists when the chief executive can issue a
compliance notice. A compliance notice is an important tool in ensuring
compliance with the Bill - the purpose of the notice is to identify and
notify the funded service provider that part of its operations or the way it is
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Community Services Bill 2006
providing services is not complying with the Bill. The notice then gives the
service provider an opportunity to fix the non-compliance.
The chief executive can issue a compliance notice to a funded service
provider if the chief executive reasonably believes the service provider is:
� contravening a provision of the Bill; or
� has contravened a provision of the Bill and it is likely this will
continue or be repeated.
This includes contravening or having contravened a prescribed standard
(see clause 28).
A compliance notice can be issued even if the service provider's funding
has been suspended. The compliance notice must state:
� that the chief executive believes the person is contravening a provision
of the Bill, or they have contravened a provision of the Bill, and it is
likely it will continue;
� which relevant provision is being contravened;
� how the relevant provision is being contravened;
� the grounds for issuing the notice;
� that the service provider must fix the contravention;
� the reasonable time within which the contravention must be fixed; and
� that it is an offence not to comply with the notice unless the service
provider has a reasonable excuse.
The compliance notice may state:
� the steps the chief executive considers necessary to fix the
contravention or avoid further contravention; and
� that the service provider must report to the chief executive after taking
the steps.
If the service provider fails to comply with the notice, the chief executive
also has a range of other sanctions he/she may use, including:
� suspending or stopping assistance to the service provider despite
anything in the service agreement;
� pursuing a remedy available under the service agreement; and
� exercising any other relevant power under the Bill.
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Community Services Bill 2006
Report by authorised officer
Clause 31 enables the chief executive to seek a written report from an
authorised officer before deciding to issue a compliance notice to a funded
service provider. The report can detail whether a funded service provider is
contravening a provision of the Bill, or has contravened a provision and the
contravention is likely to continue or recur.
Division 2 Suspending or stopping assistance
for breach of agreement
Show cause notice
Clause 32 enables the chief executive to issue a show cause notice to a
funded service provider if the:
� service agreement with the service provider includes such a process
for a breach of the agreement; and
� chief executive reasonably suspects the funded service provider has
breached the service agreement; and
� chief executive intends to take action to suspend or stop assistance to
the service provider.
A show cause notice issued to the funded service provider must state:
� the actions the chief executive proposes to take under the agreement
(for example, suspending assistance);
� the basis for taking the proposed action;
� an outline of the facts and circumstances that form the basis for taking
the proposed action; and
� an invitation for the service provider to show, within a specified period
of time (of at least 21 days) why the proposed action should not be
taken.
Representations about show cause notice
Clause 33 clarifies that the funded service provider may make written
statements about the show cause notice, within the show cause period, to the
chief executive. The chief executive is required to consider all written
statements from the funded service provider.
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Community Services Bill 2006
Ending show cause process without further action
Clause 34 requires the chief executive to cease any further action under the
show cause notice if the chief executive no longer believes there are
grounds to take the proposed action, after consideration of all
representations from the funded service provider. The clause also requires
the chief executive to notify the funded service provider that no further
action will be taken in relation to the show cause notice.
Suspending or stopping assistance
Clause 35 provides that, after the chief executive considers any written
statements from the service provider, where there are still grounds to take
action and that such action is warranted, the chief executive may:-
� suspend the assistance for a longer period of time, if the proposed
action specified in the show cause notice was to suspend assistance; or
� stop the assistance or suspend it for a period, if the proposed action
specified in the show cause notice was to stop the assistance.
Note that the chief executive may take action specified in the show cause
notice if the funded service provider does not make an acceptable
representation in response to the show cause notice.
Division 3 Recovery of funding
Recovery of amount from funded service provider
Clause 36 provides for the recovery of unspent funds (funds that have not
been spent by a service provider after funding has been ceased), and
improperly used funds (funds that have been used for a purpose other than
that specified in the service agreement), as a debt owing to the State.
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Community Services Bill 2006
Part 6 Monitoring and enforcement
Division 1 Preliminary
Purpose of Part 6
Clause 37 clarifies that the purpose of Part 6 is to provide the department
with appropriate monitoring and enforcement powers to ensure compliance
with the Bill and the proper and efficient delivery of community services
by funded service providers.
Matters to be considered by chief executive or authorised
officer before exercising a power
Clause 38 clarifies that, prior to exercising a monitoring or enforcement
power, the chief executive or authorised person must consider whether it is
more appropriate to seek the cooperation of the funded service provider.
However, the decision to exercise such a power cannot be challenged
because the chief executive or authorised officer did not seek the
cooperation of the funded provider.
Division 2 Authorised officers
Powers generally
Clause 39 provides that an authorised officer has the powers provided under
this Bill. In exercising these powers, an authorised officer is subject to the
directions of the chief executive.
Appointment
Clause 40 provides that the chief executive may appoint a public service
employee (defined in the Public Service Act 1996) as an authorised officer.
For the purposes of investigating a particular matter, the chief executive
may appoint another person (such as a person outside the department) to
investigate a very sensitive or controversial matter and to ensure any
perceptions of conflicts of interest are reduced.
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Community Services Bill 2006
Note that it is not intended that any investigations under the Bill would
compromise other investigations of criminal matters.
Qualifications for appointment
Clause 41 stipulates that the chief executive can only appoint a person as an
authorised officer if the chief executive is satisfied that the person has the
necessary experience or expertise and any competencies specified in a
regulation.
Appointment conditions and limit on powers
Clause 42 clarifies that the conditions of appointment of an authorised
officer can be stated in their instrument of appointment or a written notice
signed by the chief executive or in a regulation.
Issue of identity card
Clause 43 provides that the chief executive must issue an identity card to
each authorised officer. It also states what the identity card must include: a
photo of the authorised officer, their signature, identification that they are
an authorised officer appointed under the Bill, and an expiry date.
Production or display of identity card
Clause 44 provides a general obligation on an authorised officer to produce
their identity card before exercising a power or to have the identity card
clearly visible to the other person when exercising their power. The only
exception is when an authorised officer is entering a public place when it is
open to the public (clause 48(1)(b)) or when entering a place to ask for the
occupier's consent to enter (clause 48(2)).
When authorised officer ceases to hold office
Clause 45 specifies when an authorised officer ceases to hold office. An
authorised officer ceases to hold office when either their term, or another
condition of appointment, ends or they resign.
Resignation
Clause 46 states that an authorised officer may resign by a signed written
notice given to the chief executive.
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Community Services Bill 2006
Return of identity card
Clause 47 provides that if a person ceases to be an authorised officer, they
must return their identity card within 21 days after ceasing to be an
authorised officer unless they have a reasonable excuse. It is an offence not
to comply - maximum penalty is 10 penalty units (currently $750).
Division 3 Powers of authorised officers
Power to enter places
Clause 48 specifies in what circumstances an authorised officer can enter a
place, which includes premises or vacant land. An authorised officer can
enter a place if:
� the occupier consents to entry;
� it is a public place and the entry is made when it is open to the public;
� it is not a home, and the entry is made when the place is open for
business or otherwise open for entry; or
� the entry is authorised by a warrant.
Entry with consent
Clause 49 sets out what the authorised officer must do if they intend to seek
consent of the occupier of a place before they enter. If consent is provided,
the authorised officer can ask the person to sign an acknowledgment of the
consent; the clause lists what the acknowledgment must contain. A copy of
the acknowledgment must be provided to the occupier.
If a dispute arises about whether consent was provided, a signed
acknowledgment properly made under this clause is evidence that the
occupier consented to the entry.
Application for warrant
Clause 50 provides for how an authorised officer can apply to a magistrate
to enter a place. A sworn written application stating the grounds for the
warrant must be provided. If there is insufficient information, a magistrate
can refuse to consider the application until all relevant information is
provided.
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Community Services Bill 2006
Issue of warrant
Clause 51 provides the circumstances when a warrant can be issued by a
magistrate. A warrant can only be issued if a magistrate is satisfied there
are reasonable grounds for suspecting:
� it is necessary to enter the place to protect a person receiving
community services from a funded service provider at the place from
risk of harm because of abuse, neglect or exploitation; or
� to follow up on a compliance notice issued to the provider (clause 30),
but only if the magistrate is satisfied that non-compliance with the
notice may severely affect the provision of community services.
If a warrant is issued, the clause specifies the particulars to be included.
Application by electronic communication and duplicate warrant
Clause 52 provides for an application for a warrant to be made
electronically if an authorised officer reasonably considers it necessary
because of urgent circumstances or another special circumstance, such as
the authorised officer's remote location. The clause sets out the process for
the application and the issuing of a warrant in these special circumstances.
Defect in relation to a warrant
Clause 53 clarifies that a defect in a warrant does not invalidate a warrant
unless it affects the substance of a warrant in a material way.
Warrants - procedure before entry
Clause 54 sets out what an authorised officer must do if they enter a place
with a warrant, making a reasonable attempt to:
� identify themselves to an occupier of the place;
� give the occupier a copy of the warrant;
� advise that the authorised officer is permitted by the warrant to enter
the place; and
� provide an opportunity to allow the authorised officer's immediate
entry without using force.
The authorised officer does not have to follow the above procedure if they
believe on reasonable grounds that immediate entry is required to ensure
effective execution of the warrant is not frustrated.
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General powers after entering a place
Clause 55 lists what monitoring and compliance powers an authorised
officer may have upon lawful entry to a place. These powers include:
� searching the place;
� inspecting, measuring, testing, photographing or filming any part of
the place or anything at the place;
� taking a thing or sample for analysis or testing;
� copying a document or taking a document to another place to copy it -
if the authorised officer takes the document away to copy, they must
copy it as soon as practicable and return it;
� taking into or onto the place any person, equipment and materials the
officer reasonably requires for the exercise of a power;
� conferring alone with a person;
� requiring a person at the place to provide assistance in the exercise of
the authorised officer's powers - when making this requirement, the
authorised officer must warn the person that it is an offence not to
comply unless they have a reasonable excuse (see clause 56); and
� requiring a person at the place to answer questions to help the
authorised officer determine whether or not the Bill has been
complied with - when making this requirement, the authorised officer
must warn the person that it is an offence not to comply unless they
have a reasonable excuse (see clause 57).
Failure to help authorised officer
Clause 56 provides that a person required under the Bill to give reasonable
help by the authorised officer must comply unless they have a reasonable
excuse - maximum penalty units is 40 penalty units (currently $3,000).
The clause confirms that it is a reasonable excuse for a person not to
comply with a requirement if that might tend to incriminate the person.
Failure to answer questions
Clause 57 provides that person required (under the Bill) to answer
questions must comply unless they have a reasonable excuse - maximum
penalty units is 40 penalty units (currently $3,000). The clause confirms
that it is a reasonable excuse for a person to not answer any questions if that
might tend to incriminate the person.
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Division 4 Power to require information
Notice under s.59 may relate to use of assistance
Clause 58 clarifies when a notice under clause 59 may be given.
Power to require information or documents
Clause 59 subclause (1) gives the chief executive or an authorised officer
the ability to require information or documents from a person by giving a
notice to that effect. The notice may require the person to give information
that is within the person's knowledge about a specified matter within a
stated reasonable timeframe and in a stated manner. The information may
be sought either orally or in writing. A notice may also require the person
to give to the chief executive or authorised officer, a document that is in the
person's possession or control within a reasonable timeframe and in a
stated manner.
Note that the powers under this part are limited by clauses 37 and 38 of the
Bill.
Subclause (2) allows the chief executive or authorised officer to keep a
document provided pursuant to subclause (1) so that a copy can be made of
it.
Subclause (3) gives both the chief executive and authorised officer the
ability to require the person, who has possession or control of the
document, to certify the copy of a document as a true copy.
Subclause (4) places an onus on the chief executive or authorised officer to
return the document to the person as soon as practicable after copying it.
Subclause (5) requires a person from whom a request is made in subclause
(1) to comply with the requirement unless the person has a reasonable
excuse. Failing to comply with a requirement to produce information or
documents is an offence to which a maximum penalty of 50 penalty units
(currently $3,750) may apply.
The clause confirms that it is a reasonable excuse under subclause (6) for a
person not to comply with a requirement made under subclause (1) or (3),
if complying may incriminate the person.
Subclause (7) provides that if a court convicts a person of an offence
against subclause (5), the court may also order the person to give to the
chief executive or a stated authorised officer, within a stated time and in a
stated way, information or a document to which the requirement related.
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Division 5 Other matters
Notice of damage
Clause 60 specifies what the authorised officer must do if they (or a person
acting under their direction) damages property. The clause does not apply
to damage the authorised officer believes is trivial.
The authorised officer (unless it is impracticable) must immediately give
notice of the details of the damage to the person who appears to be the
owner (or in possession/control) of the property. If it is impracticable to
give immediate notice to the person, they must leave the notice in a
conspicuous position and in a reasonably secure way.
Compensation
Clause 61 allows a person to claim compensation if they incur loss or
expense because they complied with a requirement under clause 48 or
clauses 55 to 57.
False or misleading statements
Clause 62 makes it an offence for a person to state anything to an
authorised officer that the person knows is false or misleading - maximum
penalty is 40 penalty units (currently $3,000).
False or misleading documents
Clause 63 makes it an offence for a person to provide a document to an
authorised officer that the person knows is false or misleading in a material
particular - maximum penalty is 40 penalty units (currently $3,000).
However, it is not an offence if the person, when giving the document:
� tells the authorised officer (to the best of their ability) how it is false or
misleading; and
� if they have or can reasonably obtain the correct information - gives
the correct information.
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Obstructing an authorised officer
Clause 64 makes it an offence to obstruct an authorised officer, in the
exercise of a power under the Bill, unless the person has a reasonable
excuse - maximum penalty is 40 penalty units (currently $3,000).
If the person has obstructed the authorised officer and the officer decides to
proceed with the exercise of the power, the officer must warn the person it
is an offence not to comply and that the person's conduct is considered to
be an obstruction.
Impersonation of an authorised officer
Clause 65 makes it an offence to pretend to be an authorised officer -
maximum penalty is 40 penalty units (currently $3,000).
Part 7 Interim manager
Division 1 Preliminary
Main purpose of Part 7
Clause 66 clarifies that the main purpose of appointing an interim manger
is to ensure the proper and efficient delivery of services provided under a
service agreement with a funded service provider.
Before appointment, the chief executive is required to consider any
alternative action that may be more appropriate, including not taking any
action.
Division 2 Appointment
Appointment
Clause 67 allows the chief executive to appoint a person as an interim
manager for a funded service provider receiving assistance from the
department, other than `one-off' funding. An interim manager is appointed
to administer the services that are provided using departmental assistance.
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Basis for appointment
Clause 68 provides the only grounds for when the chief executive can
appoint an interim manager - that is, only if satisfied that the appointment
is reasonably necessary to ensure the proper and efficient use of funds
under the service agreement with the service provider.
The clause sets out a number of factors which the chief executive may
consider in deciding whether the appointment is reasonably necessary.
The chief executive may consider, inter alia, whether the service provider is
receiving assistance from another source (such as another government
agency). The inclusion of this matter reflects that the appointment of an
interim manager may occur as a coordinated response across assisting
agencies.
Suitability of proposed appointee
Clause 69 provides that an interim manager may only be appointed if the
chief executive is satisfied that the proposed appointee is suitable for the
appointment. The clause sets out the matters the chief executive must
consider before making the appointment.
Terms of appointment
Clause 70 specifies the matters the appointment of an interim manager must
include.
Notice to funded service provider about appointment
Clause 71 specifies that a copy of the terms of appointment must be given
to the service provider immediately after appointment of an interim
manager.
Informing persons using community services about
appointment
Clause 72 provides that the chief executive may direct an interim manager
to inform users of a community service, before exercising any powers, that
he or she has been appointed as interim manager to the funded service.
For example, people using the community services provided by the service
provider may be informed by:
� written notice of the appointment;
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� posting a notice of the appointment at a place at the service provider's
premises where it is likely to be seen by users of the service; or
� another way that is considered appropriate.
Initial period of appointment
Clause 73 specifies that the initial period of appointment for an interim
manager must not be longer than 3 months.
Variation of appointment
Clause 74 allows the chief executive to extend or vary the appointment of
an interim manager.
However, any one period of extension cannot be more than 3 months and
total period of an appointment (with extensions) cannot be more than 6
months.
If the appointment is varied, notice of the variation must be given by the
chief executive to the service provider.
Ending of appointment
Clause 75 provides that the chief executive can end the interim manager's
appointment at any time before the end of the appointment period, if the
chief executive is satisfied that the appointment is no longer necessary.
If the chief executive ends the appointment of the interim manager, the
chief executive must give notice of the fact to the funded service provider.
Persons using the community service may also be informed of the end of
the appointment in a way the chief executive considers appropriate.
Division 3 Function and powers
Application of division 3
Clause 76 identifies that the functions and powers in this division apply to a
person appointed as interim manager of a funded service provider.
Interim manager's function
Clause 77 specifies that the functions of the interim manager under the
terms of the appointment are to:
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� ensure the proper and efficient use of assistance under the service
agreement with the funded service provider; and
� provide community services that the funded service provider has
agreed to provide under the service agreement.
Interim manager's powers
Clause 78 provides that so far as is necessary to carry out his or her
functions, an interim manager may:
� enter the premises of the service provider;
� use the facilities or things in the premises that (it appears) are intended
for use, or are ordinarily used, to provide community services;
� ask for and accept payments owing to the service provider; and
� do anything in relation to a service agreement, on behalf of the service
provider, that the service provider is permitted or required to do.
It is intended that these powers be co-operative in nature to enable the
interim manager to work with the service provider to keep the service
operational and functional for the consumers. The powers are not meant to
be investigative in nature.
Direction by chief executive
Clause 79 specifies that the interim manager is subject to the chief
executive's direction in performing his or her functions or exercising his or
her powers.
Other powers
Clause 80 provides that the interim manager has any powers of the funded
service provider that are necessary or convenient to carry out the manager's
functions. For example, the interim manager may authorise the carrying
out of repairs.
Limitation on powers under instrument of appointment
Clause 81 states that the powers conferred in this part can be limited in the
instrument of appointment.
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Production of instrument of appointment for inspection
Clause 82 provides that an interim manager must comply with a request
from a person to produce the interim manager's instrument of appointment
if exercising or proposing to exercise a power in relation to that person.
Obstruction
Clause 83 makes it an offence for a person to obstruct an interim manager in
the exercise of their powers unless the person has a reasonable excuse -
maximum penalty is 40 penalty units (currently $3,000).
If a person has been obstructive, and the interim manager proceeds, the
interim manager must warn the person it is an offence to obstruct (unless
there is a reasonable exercise) and that person's conduct is considered to be
an obstruction.
Division 4 Other matters
Access to information or documents
Clause 84 enables an interim manager to access information or documents
by asking an executive officer of a funded service provider to provide the
information or documents the interim manager reasonably needs to carry
out his/her functions.
In addition, the chief executive may disclose (or give access to) information
to an interim manager that the chief executive considers appropriate for the
purposes of the interim manager's appointment.
Confidentiality
Clause 85 specifies how an interim manager must use, and deal with,
confidential information obtained during the course of his/her appointment.
A person who is, or was, an interim manager must not disclose the
information to anyone else or give access to the information to anyone else
other than in the following circumstances:
� for the purpose of exercising a function or power in terms of their
appointment;
� for the purposes of complying with a request by the chief executive to
provide relevant records or reports (under clause 88);
� with the consent of the funded service provider;
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� pursuant to a legal requirement to produce documents or give
evidence in a court or tribunal;
� as expressly permitted or required by another Act; or
� to protect a person receiving community services from abuse, neglect
or exploitation.
It is an offence to disclose confidential information other than in these
circumstances - maximum penalty is 40 penalty units (currently $3,000).
`Confidential information' is defined in schedule 4 as including
information about a person's affairs, but not including:
� information already publicly disclosed (regardless of the size of the
audience to whom it was disclosed), unless further disclosure is
prohibited by law; or
� information that will not identify the relevant person.
Remuneration
Clause 86 states that an interim manager is entitled to be paid the
reasonable amount of remuneration agreed with the chief executive.
Funded service provider liable for remuneration and other costs
Clause 87 provides that a funded service provider is liable for remuneration
and other administrative costs of the interim manager. This is a liquidated
amount that (if not paid) can be recovered by the department.
In practice, the service provider would be consulted before determining the
estimated administrative costs of an interim manager.
Accounts and reports
Clause 88 requires the interim manager to provide to the chief executive the
following records and reports about the funded service provider:
� records of all amounts received or paid in the course of the
appointment; and
� other reports about the administration as required by the chief
executive.
Any records or reports have to be provided to the chief executive as soon as
practicable. Also, a copy of each record or report must be given to the
service provider.
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Compensation
Clause 89 allows a person to claim compensation from the chief executive
if the person incurs loss or damage because of the exercise (or purported
exercise) of an interim manager's powers. The court with relevant
jurisdiction hears and determines the claim. A court may order
compensation to be paid only if it is satisfied that it is just to make the order
in that particular case.
Part 8 Reviews and appeals
Division 1 Reviewable decisions
Reviewable decisions
Clause 90 states that the decisions of the chief executive that can be
reviewed (called reviewable decisions), and who can apply for a review
(called an interested person), are listed in schedule 1 of the Bill.
The five reviewable decisions (and the interested person) are:
Interested person Reviewable decision
Applicant for approval Refusal of an application to become an
as an approved service approved service provider (clause 13)
provider
Approved service Refusal of an organisation's application to
provider cancel its status as an approved service provider
(clause 16)
Approved service Cancellation of an organisation's status as an
provider approved service provider (clause 17)
Funded service Suspending or stopping assistance for not
provider - whose complying with a compliance notice (clause 30)
assistance has been
suspended or stopped
Funded service Appointment of an interim manager (clause 67)
provider - for whom
an interim manager
has been appointed
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Reviewable decisions are subject to a two-tiered review process: firstly,
internal review (clause 92) and secondly, external review by the
Commercial and Consumer Tribunal (clause 95).
Chief executive must give notice after making reviewable
decision
Clause 91 provides that immediately after making a reviewable decision,
the chief executive must give a written notice to the interested person
stating:
� the reasons for decision;
� that within 28 days after receiving the notice, the person may apply to
the chief executive for a review of the decision;
� how the person may apply for the review; and
� if the person applies for the review, and the matter is not resolved, the
person may appeal to the Commercial and Consumer Tribunal.
A notice does not have to be provided if the chief executive cannot locate
the interested person after making reasonable enquiries.
Division 2 Review of decision
Application for review
Clause 92 sets out how an interested person can apply to the chief executive
to review a reviewable decision.
Stay of operation of original decision
Clause 93 states that, as a general rule, an application to the chief executive
to review a decision does not stay the original decision made by the chief
executive.
However, before a decision takes effect, the chief executive has discretion
to stay the operation of the original decision. In such cases, the chief
executive provides a written notice to the interested person staying the
operation of the decision for a stated period. As a further option, the
interested person can apply to the Commercial and Consumer Tribunal for
a stay of the decision.
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Community Services Bill 2006
The chief executive or the Tribunal may stay the decision to secure the
effectiveness of the review and any later appeal to the Tribunal. The stay
can be granted on conditions the chief executive or Tribunal considers
appropriate and has effect for the period stated by the chief executive or
Tribunal.
Review decision
Clause 94 clarifies that for a review by the chief executive of the original
decision, the chief executive must ensure the application is not dealt with
by the person who made the original decision or a person in a less senior
office than the person who made the original decision. The only exception
to this is if the chief executive personally made the original decision.
Within 28 days after receiving the review application, the chief executive
(or an authorised delegate) must review the original decision and make a
decision to either:
� confirm the original decision;
� amend the original decision; or
� substitute another decision.
Immediately after deciding the application, the chief executive must give
the interested person written notice of:
� the review of the decision;
� the reasons for the new decision;
� that within 28 days after receiving the notice, the person may apply
for an external review of the decision to the Commercial and
Consumer Tribunal; and
� how they may apply for external review.
If the chief executive does not decide the application within the required 28
days after receiving the review application, the chief executive is deemed to
have made a review decision confirming the original decision.
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Community Services Bill 2006
Division 3 Appeal against review decision
Appeal against review decision
Clause 95 provides the interested person with a right of external review of
the decision made by the chief executive. Within 28 days after receiving a
decision notice for a review decision, the interested person may appeal
against the decision to the tribunal.
Appeal is by way of rehearing
Clause 96 specifies how the Commercial and Consumer Tribunal reviews
the decision of the chief executive. The tribunal reviews the matter based
on the evidence that was before the chief executive.
Part 9 Screening of persons engaged
by the department
Currently under the Family Services Act 1987, all employees of the
department and volunteers are required to undergo criminal history checks
prior to their employment or engagement. The Bill maintains the relevant
authorisations and safeguards for the protection of confidentiality and
restrictions in relation to this information.
`Criminal history', for the purpose of criminal history screening and
reporting, is defined in schedule 4.
Division 1 Preliminary
Main purpose of part 9
Clause 97 provides that the main purpose of this part is to enable the chief
executive to obtain the criminal history of, and related information about,
persons engaged or to be engaged by the department.
Persons engaged by the department
Clause 98 provides for what is meant by the term `engaged by the
department'. This is important as it defines the scope of who has to
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Community Services Bill 2006
undergo a mandatory criminal history check. A public service employee of
the department, a person contracted by the department working in the
administration of an Act administered by the Minister, and volunteers or
students on work experience working in the department will be subject to
criminal history screening.
This part applies despite the Criminal Law (Rehabilitation of
Offenders) Act 1986
Clause 99 provides that this part applies despite anything in the Criminal
Law (Rehabilitation of Offenders) Act 1986. A person's criminal history
therefore includes convictions that Act would otherwise exclude.
Chief executive to advise of duties of disclosure etc.
Clause 100 provides that before a person is engaged by the department, the
chief executive must tell the person that:
� the person must disclose their criminal history and, if subsequently
engaged, any changes to their history (clauses 102 and 103);
� the chief executive may obtain from the Police Commissioner:
-- a report about the person's criminal history;
-- a description of the circumstances of a charge or conviction; and
-- information about an investigation relating to the possible
commission of a `serious offence' (clause 106); and
� guidelines on how criminal history information is taken into account
are available (clause 110).
Division 2 Interpretation
What is a serious offence
Clause 101 defines `serious offence'. A serious offence is defined as:
� an offence referred to in schedule 2, which is a list of relevant current
Queensland offences, including counselling, procuring, attempting or
conspiring to commit those offences;
� an offence referred to in schedule 3, which is a list of relevant
Queensland offences that have expired or been repealed;
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Community Services Bill 2006
� an equivalent offence in another jurisdiction (State, Territory,
Commonwealth or foreign jurisdiction); or
� a class 1 or 2 offence as defined in the Child Protection (Offender
Reporting) Act 2004, that is not otherwise a serious offence under this
section.
The link to the Child Protection (Offender Reporting) Act 2004 captures
offences for which there is mandatory registration on the Australian
National Child Offender Registry (ANCOR), ensuring consistency across
these regimes, particularly in relation to Commonwealth offences for
which it may be argued that there are no equivalent Queensland offences.
Subsection (2) clarifies that it is immaterial if an offence in schedule 2 or 3
has been amended from time to time or that the provision was previously
numbered with a different number.
The chief executive can obtain information about an investigation relating
to the possible commission of a serious offence by a person engaged or
seeking to be engaged by the department - see clause 106.
Division 3 Disclosure of criminal history
Persons seeking to be engaged by the department must
disclose criminal history
Clause 102 provides for a duty of disclosure before a person is engaged by
the department. Before engagement, the person must disclose whether they
have a criminal history. If they have a criminal history, the person's
complete criminal history must be disclosed.
Note that it is an offence to provide a false or misleading disclosure - see
clause 105.
Persons engaged by the department must disclose changes in
criminal history
Clause 103 imposes a duty of disclosure if there is a change in a person's
criminal history after being engaged by the department. A change in a
criminal history includes a person acquiring a criminal history. The person
must immediately disclose to the chief executive the details of the change.
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Community Services Bill 2006
It is an offence to provide a false or misleading disclosure. It is also an
offence not to disclose a change in criminal history unless the person has a
reasonable excuse (see clause 105).
Requirements for disclosure
Clause 104 provides for how a disclosure must be made in order to comply
with the disclosure requirements in clauses 102 and 103. The disclosure
must be in a form approved by the chief executive and must include the
following particulars:
� the existence of a conviction or charge;
� when the offence was committed or alleged to have been committed;
� the details of the offence or alleged offence; and
� for a conviction - whether or not a conviction was recorded, and the
sentence imposed.
False or misleading disclosure or failure to disclose
Clause 105 makes it an offence to either:
� give a disclosure that is false or misleading in a material particular; or
� not disclose a change in criminal history, without a reasonable excuse.
It is not an offence to give a false or misleading disclosure if the person
indicates, when providing the information, the way in which it is false or
misleading and provides, if reasonably possible, the correct information.
The maximum penalty is 100 penalty units (currently $7,500) or 2 years.
This offence is the same as that in the Family Services Act 1987 (section
21).
Division 4 Chief executive may obtain information
from other entities about criminal
history and certain investigations
Chief executive may obtain report from commissioner of the
police service
Clause 106 provides that where a person is engaged by the department or
seeks to be engaged by the department and has given the chief executive a
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Community Services Bill 2006
disclosure, the chief executive may ask the Police Commissioner to give
certain information.
In particular, the chief executive may ask for the following information:
� a written report about the person's criminal history;
� a description of the circumstances of a conviction or charge; and
� information about an investigation relating to the possible commission
of a `serious offence'. `Serious offence' is defined in clause 101.
The Police Commissioner must comply with the request except in certain
circumstances. For example, information about an investigation cannot be
provided if the Police Commissioner believes the release of the information
would hinder the investigation, lead to the identification of an informant or
may affect the safety of a police officer. Similarly, information must not be
released if the Police Commissioner believes it is unlikely to lead to a
reasonable suspicion that the person committed a serious offence.
Before making decisions based on the information about the person's
suitability for employment, the chief executive must give the person the
chance to respond - see clause 109.
Prosecuting authority to notify chief executive about
committal, conviction etc.
Clause 107 requires a prosecuting authority (the Police Commissioner or
the Director of Public Prosecutions) to notify the chief executive where the
authority is aware that a person charged with an indictable offence is
engaged by the department.
The clause sets out the particulars that must be provided where:
� the person is committed for trial;
� the person is convicted of the offence;
� if the person has appealed the conviction, the appeal has been decided
or otherwise ended; or
� the prosecution process ends without the person being convicted of an
indictable offence (for example, where the person is acquitted, or
where the person is convicted of a summary offence only).
Given the serious nature of indictable offences, it is important for the chief
executive to know about this information without relying on the
individual's obligation to disclose.
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Community Services Bill 2006
Before making decisions based on the information about the person's
suitability for employment, the chief executive must give the person the
chance to respond - see clause 109.
Division 5 Controls on use of information about
criminal history and certain
investigations
Use of information obtained under this part
Clause 108 provides that criminal history (and any investigative)
information received by the chief executive under this part cannot be used
for any other purpose other than assessing whether or not the person should
be, or should continue to be, engaged by the department. The clause
recognises the sensitivity of the information that is being obtained and
limits its use.
It also provides that in making an assessment on the information, the chief
executive must have regard to:
� when the offence was committed or alleged to have been committed;
� the nature of the offence and its relevance to the person's duties or
proposed duties; and
� anything else considered relevant by the chief executive.
There are penalties for the improper disclosure of the information - see
clause 126.
Person to be advised of information obtained
Clause 109 provides that before any information obtained under this part is
used to assess whether a person should be, or continue to be, engaged by
the department, the chief executive must disclose the information to the
person and allow the person a reasonable opportunity to comment.
Guidelines for dealing with information
Clause 110 provides that the chief executive must make guidelines for
dealing with information obtained under this part. The purpose of the
guidelines is to ensure that natural justice is afforded to the person about
whom the information relates, and that only relevant information is used
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Community Services Bill 2006
when determining whether or not to engage, or continue to engage, the
person. These guidelines must be provided to the person on request.
Part 10 Legal Proceedings
Division 1 Application
Application of part 10
Clause 111 provides that this part applies to a legal proceeding under this
Bill.
Division 2 Evidence
Appointments and authority
Clause 112 provides that for the purposes of any legal proceedings, the
following are presumed:
� the chief executive's appointment;
� an authorised officer's appointment; and
� the authority of the chief executive or an authorised officer to do
anything under this Bill.
However, a party to a proceeding may, by reasonable notice, request proof
of any of these.
Signatures
Clause 113 provides that a signature purporting to be that of the chief
executive or an authorised officer is evidence of the signature it purports to
be.
Evidentiary provisions
Clause 114 provides for a number of evidentiary matters. A certificate
signed by the chief executive and stating any of the following is evidence of
the matter:
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Community Services Bill 2006
� that a stated document is:
-- an appointment, approval or decision;
-- a notice or requirement; or
a record or extract from a record;
made, given, issued or kept under the Bill;
� that a stated document is another document kept under this Bill;
� that a stated document is a copy of a thing mentioned above;
� that on a stated day or during a stated period, the appointment of an
authorised officer was or was not in force for a stated person;
� that on a stated day, a stated person was given a stated notice under the
Bill; and
� that on a stated day, a stated requirement was made of a stated person.
Also, a statement in a complaint starting a proceeding that the matter of
complaint came to the complainant's knowledge on a stated day is evidence
of when the matter came to the complainant's knowledge (see clause 116).
Division 3 Proceedings
Proceeding for offences
Clause 115 provides that a proceeding for an offence against the Bill must
be taken in a summary way in accordance with the Justices Act 1886.
When proceeding may start
Clause 116 specifies the time limits within which a proceeding for an
offence against the Bill must commence. The proceeding must commence
within the later of the following periods:
� one year after the commission of the offence; or
� six months after the offence comes to the complainant's knowledge,
but within two years after the offence is committed.
Allegations of false or misleading information or document
Clause 117 makes it clear that in any proceeding for an offence against the
Bill involving false or misleading information or a false or misleading
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document, it is enough for the charge to state that the information or
document was `false or misleading', without specifying which.
Forfeiture on conviction
Clause 118 provides that if a person is convicted of an offence against the
Bill, a court may order forfeiture to the State (and may make any
appropriate order to enforce the forfeiture) of:
� anything used to commit the offence; or
� anything else the subject of the offence.
The court can make this order regardless of whether or not the thing has
been seized, and if the thing has been seized, regardless of whether or not
the thing has been returned to its owner.
The clause also makes it clear that this section does not limit the court's
powers under the Penalties and Sentences Act 1992 or another law.
Dealing with forfeited thing
Clause 119 provides for the consequences of a forfeiture ordered by the
court. The thing becomes the State's property and the State can deal with it
as it considers appropriate, including destroying the thing.
Responsibility for acts or omissions of representative
Clause 120 applies in a proceeding for an offence against the Bill where
something relevant to the offence has been done or omitted to be done by a
representative of a person or corporation.
A representative is defined to mean:
� for a corporation - an executive officer, employee or agent of the
corporation; or
� for an individual - an employee or agent of the individual.
If it is relevant to prove a person's state of mind about a particular act or
omission, it is enough to show that:
� the act was done or omitted to be done by the representative of the
person within the scope of the representative's actual or apparent
authority; and
� the representative had the state of mind.
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`State of mind' is defined to include the person's:
� knowledge, intention, opinion, belief or purpose; and
� reasons for the intention, opinion, belief or purpose.
Also, an act done or omitted to be done for a person (including a
corporation) by a representative of the person within the scope of the
representative's actual or apparent authority is taken to have been done or
omitted to be done by the person, unless the person can prove that the
person could not, by exercising reasonable diligence, have prevented the
act or omission.
Executive officers must ensure corporation complies with Act
Clause 121 states the general rule that the executive officers of a
corporation (defined in schedule 4 as anyone who is concerned or takes
part in the management of the corporation) must ensure the corporation
complies with the Bill. If a corporation commits an offence against the Bill,
the executive officers of the corporation also commit an offence - the
offence of failing to ensure the corporation complies with the provision.
The maximum penalty is the penalty for the contravention of the provision
by an individual.
Evidence that the corporation has been convicted of an offence against a
provision in the Bill is evidence that each of the executive officers
committed the offence of failing to ensure corporation complies with the
Bill.
However, it is a defence for an executive officer to prove:
� if the officer was in a position to influence the conduct of the
corporation in relation to the offence - that the officer exercised
reasonable diligence to ensure the corporation complied with the
provision; or
� that the officer was not in a position to influence the conduct of the
corporation in relation to the offence.
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Community Services Bill 2006
Part 11 Miscellaneous
Advisory committees
Clause 122 allows the Minister to establish advisory committees to obtain
the views of government, individuals, community organisations and other
non-government entities about community services.
Dissolution
Clause 123 gives the Minister a specific legislative power to dissolve a
Ministerial advisory committee.
Other matters
Clause 124 allows the Minister to decide matters about a Ministerial
advisory committee that are not provided for in the Bill, including, for
example, the way a committee must conduct meetings or report to the
Minister.
Confidentiality of information about criminal history and
related information
Clause 125 protects the confidentiality of police information (criminal
history and investigative information) acquired by the chief executive, a
public service employee or a selection panel member under the criminal
history screening process outlined in Part 9 of the Bill.
It is an offence for a person to disclose the police information or give
access to a document - maximum penalty is 100 penalty units (currently
$7,500) or 2 years imprisonment. The offence applies to past and present
employees of the department (including the chief executive) and members
of a selection panel.
However, it is not an offence to disclose or give access to the information:
� with the consent of the adult person to whom the information relates;
or
� if the disclosure is otherwise required under an Act.
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Duty of confidentiality
Clause 126 outlines a general duty of confidentiality under the Bill (see
also clauses 85 and 125, and the guiding principles - for example, sub-
paragraphs 5(f)(iv) and (v)).
The clause provides that anyone who is or has been a departmental
employee or chief executive or authorised officer, and in that capacity has
or has had access to confidential information about an individual, must
treat the information as confidential.
`Confidential information' is defined in schedule 4 as including
information about a person's affairs, but not including:
� information already publicly disclosed (regardless of the size of the
audience to whom it was disclosed), unless further disclosure is
prohibited by law; or
� information that will not identify the relevant person.
The person is not to record, disclose or give anyone access to the
information other than in clearly defined circumstances:
� for a purpose of the Bill;
� with the individual's consent;
� pursuant to a subpoena or summons or similar, or when the person is
compelled to give the information as evidence before a court or
tribunal;
� as expressly (not by mere implication) permitted or required under
another Act; or
� to protect a service user from abuse, neglect or exploitation (note that
the recording, disclosure, or giving of access must be necessary to
protect the service user; the clause does not permit recording,
disclosure, or giving of access that is merely `in connection with' or
`at the same time as' the protection).
The maximum penalty for an unlawful disclosure is 40 penalty units
(currently $3,000).
Power to require information or documents
Clause 127 enables the chief executive to require, within a reasonable time,
information or documents relating to a matter to which the chief executive
may have had regard in deciding whether or not to approve the provider as
an approved service provider. In other words, the provision gives the chief
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Community Services Bill 2006
executive the ongoing ability to monitor the suitability of a service provider
to be an approved service provider, ensuring that assistance is provided to
those agencies that have the organisational capacity and infrastructure to
provide accountable, sustainable and viable community services.
The chief executive may also request information or documents to be
provided from the service provider that relate to its provision of community
services.
If a service provider receives such a notice from the chief executive, it must
comply with the request. If the service provider fails to comply, provisions
of a service agreement or the provisions of parts 5, 6 and 7 may apply.
A requirement to produce a document can be complied with by producing a
certified copy of the document.
Service providers, and people acting on their behalf, are protected from
liability for disclosing information under this provision - see clause 128.
Protection from liability for giving information
Clause 128 applies where a funded non-government service provider gives
information or documents to the chief executive under the Bill. A funded
service provider (or a person on behalf of the service provider) may give
the information despite any other law that would otherwise prohibit or
restrict the giving of information.
If the person, acting honestly and on reasonable grounds, gives the
information they are protected from any civil, criminal, administrative
proceeding or any breach of professional etiquette/ethics or standards as a
result of giving the information. The clause makes it clear that in a
proceeding for defamation, the person has a defence of absolute privilege
for publishing information and if the person would otherwise be required to
maintain confidentiality about the information, the person does not
contravene that requirement, and is not liable for any disciplinary action, by
disclosing the information (or document) under the Bill.
Chief executive may share information about service provider
Clause 129 clarifies that the chief executive is able to discuss matters with
other relevant entities. For example, the chief executive may collaborate
with other relevant entities to make long term plans for service delivery in
particular geographic areas, or to ensure any actions taken under parts 5, 6
or 7 are co-ordinated with, or not duplicating actions taken by another
entity.
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Community Services Bill 2006
Delegation by Minister or chief executive
Clause 130 allows the Minister or chief executive to delegate the Minister's
or chief executive's powers under the Bill to an appropriately qualified
person who is a public service employee (see Public Service Act 1996 for
definition of `public service employee').
Protecting officials from liability
Clause 131 protects an official involved in the administration, monitoring
or enforcement of the Bill from any civil liability. An official is not civilly
liable for an act done or omission made honestly and without negligence
under the Bill. An official means:
� the Minister;
� the chief executive;
� an authorised officer;
� a public service employee;
� an interim manager; or
� a person acting under the direction of an official.
Approval of forms
Clause 132 provides that the chief executive may approve forms for use
under the Bill.
Service of documents
Clause 133 allows a document to be given to a person by a facsimile
transmission. If a document is required or permitted under the Bill to be
given to a person, the document may be given to a person (the intended
recipient) by faxing it to one of the types of fax numbers specified under
the clause.
A faxed document is taken to have been `given' on the day the document is
transmitted.
Regulation-making power
Clause 134 provides that the Governor-in-Council may make regulations
under the Bill. A regulation may prescribe fees payable under the Bill and
impose a penalty of not more than 20 penalty units (currently $1,500).
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Community Services Bill 2006
Part 12 Savings and transitional
provisions
Definitions for part 12
Clause 135 defines `commencement' for part 12.
Certain service providers taken to be approved under part 2
and to be funded service providers
Clause 136 ensures all service providers who are providing community
services with funding received from the department under the Family
Services Act 1987 (other than one-off funding) will not have to apply to
become approved service providers at the commencement of the new Act.
The clause also deems that such service providers (in this case, including
one-off funding) are funded service providers for the purposes of the new
Act.
When grants under the Family Services Act continue
Clause 137 clarifies the status of grants received by service providers who
are providing community services with funding received from the
department under the Family Services Act 1987 at the commencement of
the new Act.
The clause:
� provides for the continuation of funding received by the service
provider (other than one-off funding);
� clarifies that any conditions to which the funding was subject under
the Family Services Act 1987 continue to apply;
� deems an agreement signed by the service provider in relation to the
grant to be a service agreement under the new Act, and specifies that
the agreement is taken to include a show cause process consistent with
clause 25(l); and
� in cases where the service provider has not signed an agreement in
relation to the grant prior to the commencement - specifies that
funding must cease one year after commencement unless the Minister
approves assistance under the new Act and a service agreement (under
the new Act) has been signed by the service provider.
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Community Services Bill 2006
Other matters
Clause 138 provides that where a show cause process or a process for the
recovery of misused funds is started before commencement, the process
will continue after commencement under the provisions of the Family
Services Act 1987.
Part 13 Amendment of Commercial and
Consumer Tribunal Act 2003
Commercial and Consumer Tribunal Act 2003
Clause 139 states that this part consequentially amends the Commercial
and Consumer Tribunal Act 2003.
Clause 140 amends the definition of `empowering Act' in schedule 2 of the
Commercial and Consumer Tribunal Act 2003 by adding `Community
Services Act 2006'. This will place matters under the Bill within the
jurisdiction of the Commercial and Consumer Tribunal, allowing the
Tribunal to hear appeals pursuant to part 8.
Part 14 Amendment of Young Offenders
(Interstate Transfer) Act 1987
Clause 141 makes a minor amendment to the definitions of "department"
and "permanent head" in section 3 of the Young Offenders (Interstate
Transfer) Act 1987.
Schedule 1 Reviewable decisions
Schedule 1 lists the reviewable decisions made by the chief executive under
the Bill - see clause 90.
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Community Services Bill 2006
Schedule 2 Current serious offences
Schedule 2 lists the current serious offences for the purposes of criminal
history screening of persons engaged by the department - see clause 101.
Schedule 3 Repealed or expired serious offences
Schedule 3 lists the repealed or expired serious offences for the purposes of
criminal history screening of persons engaged by the department - see
clause 101.
Schedule 4 Dictionary
Schedule 4 defines terms used in the Bill - see clause 6.
� State of Queensland 2006