CHAPTER 2


CHAPTER 2

Overview of the Bill

2.1        This chapter provides a brief background to the Commonwealth Commissioner for Children and Young People Bill 2010 (the Bill), and then outlines the main provisions of the Bill.

Background

The concept

2.2        The concept of a national commissioner for children and young people is not new—the idea has been canvassed by community organisations and children's advocacy groups for a number of years. The introduction of a commissioner was also a unanimous recommendation arising out of the Senate Community Affairs References Committee report, Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children.[1]

Previous legislation

2.3        A national children's commissioner has also been the subject of two previous pieces of proposed legislation. While neither of the proposed bills proceeded, it is worth noting the purpose of those bills.

2.4        In 2003, the private member's bill, A Better Future for Our Kids Bill 2003 (the 2003 Bill), was introduced into the House of Representatives by Ms Nicola Roxon MP. However, the 2003 Bill did not proceed beyond the first reading. The 2003 Bill provided for the establishment of National Commissioner for Children and Young People. The purpose, objects and functions of the commissioner proposed in the 2003 Bill were similar to those in the current Bill. However, the 2003 Bill proposed the establishment of an Advisory Committee on Children to advise the commissioner. It also provided two additional functions for the commissioner:

  • establishing a 'working with children' check, to apply across Australia where adults had unsupervised care of children; and
  • developing a national code for the protection of children.[2]

2.5        In 2008, Senator Andrew Bartlett, introduced a private senator's bill, the National Commissioner for Children Bill 2008 (the 2008 Bill) which proceeded to the second reading stage, but lapsed at the end of the Parliament. The 2008 Bill also provided for the establishment of a National Commissioner for Children and Young People. Again the purpose, objects and functions of the commissioner proposed in the 2008 Bill were similar to those in the current Bill. The 2008 Bill also provided for the establishment of an Advisory Committee on Children and a National Code for the Protection of Children (incorporating a national working with children check), as proposed in the 2003 Bill.[3]

International obligations

2.6        The United Nations (UN) General Assembly adopted the Convention on the Rights of the Child (CRC) in November 1989. The CRC frames the rights of children and sets minimum standards that governments must meet in providing services and assistance to children.[4]

2.7        The CRC was ratified by Australia in 1990 and, as a result, Australia has particular obligations regarding children under international law. Since that time, offices of commissioners or guardians for children and young people have been established in various states and territories.[5]

2.8        Under the CRC, Australia is required to report to the UN about the state of children's rights every 5 years. This report is usually coordinated by the Commonwealth Attorney-General's Department in consultation with state and territory governments and other relevant Commonwealth departments and agencies.[6]

2.9        The Australian Human Rights Commission (AHRC) has noted concerns expressed by the United Nations Committee on the Rights of the Child that there is currently no national commissioner to monitor the rights of children in Australia, and there is no dedicated children's rights unit within the AHRC.[7]

Children's commissioners and guardians in other jurisdictions

2.10      In Australia, all states and territories have a commissioner or guardian for children and young people. However, the role and responsibility of the commissioner or guardian varies considerably across jurisdictions, as evidenced by the summary table in appendix 3.[8]

2.11      National commissioners for children have been appointed in other countries around the world, including: Norway, New Zealand, Sweden and the United Kingdom.[9]

Current responsibility for the protection of children

2.12      Both levels of government have a role in protecting children's rights. The Commonwealth Government is responsible for Australia's obligations under the CRC, and some policies and services within the Commonwealth's remit affect children and young people, such as income support, immigration and family law.[10]

2.13      Statutory child protection is currently a state and territory government responsibility. States and territories also have responsibility for the provision of services such as health and education.[11]

National Framework for Protecting Australia's Children

2.14      The National Framework for Protecting Australia's Children 2009-2020 (the National Framework), was endorsed by the Council of Australian Governments (COAG) on 30 April 2010. It was developed by a dedicated Working Group of the Community and Disability Services Ministerial Advisory Committee, which undertook an extensive consultation process involving the states and territories, non-government organisations, academics, child protection practitioners, carers and young people.[12]

2.15      The National Framework is a national approach to protecting children, and recognises that the protection of children is more than a statutory child protection service. The Framework states that 'Australia needs to move from seeing "protecting children" merely as a response to abuse and neglect to one of promoting the safety and wellbeing of children'. The National Framework suggests that a public health model approach with a focus on early intervention is appropriate.[13]

2.16      The National Framework recognises that the protection of children is a shared responsibility across parents, families, communities, non-government organisations, business and all levels of government. The Commonwealth Government has worked closely with states and territories in developing the Framework. While it is envisaged that the National Framework will deliver an integrated response, it is not intended that the responsibilities of governments will change. State and territory governments will retain responsibility for statutory child protection, and the Commonwealth Government will retain responsibility for income support payments.[14]

2.17      As part of the National Framework, the government is exploring the potential role of a National Children's Commissioner. The National Framework will be implemented through a series of three-year action plans. The first three-year action plan, 2009‑2012, identified twelve national priorities, including 'advocating nationally for children and young people'. This national priority is about exploring the potential to establish an Australian Commissioner for Children and Young People.[15] Progress on this priority was reported on in the Annual Report to the Council of Australian Governments 2009‑10 — Protecting Children is Everyone's Business: National Framework for Protecting Australia's Children 2009‑2020, as follows:

The Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs has continued to consult with key stakeholders, including existing State and Territory commissioners and guardians, state and territory governments, and the community, particularly children themselves, on the potential for an Australian Commissioner for Children and Young People. In early 2010, the department concluded consultations and provided advice to the Commonwealth Government for consideration.[16]

Main provisions of the Bill

2.18      The main provisions of the Bill are outlined below.[17]

Part 1 - Preliminary

2.19      Part 1 provides for the date of commencement, the object and underlying principles, definition of terms, and the extent of the application of the legislation.

2.20      The object of the Bill is for provided for in clause 3: to establish a Commonwealth Commissioner for Children and Young People (Commonwealth Commissioner) as an independent statutory office. In summary, clause 3 states that the Commonwealth Commissioner will:

  • advocate for the needs, views and rights of people under the age of 18, at a national level;
  • monitor the development and application of laws affecting children and young people;
  • at a national level, coordinate relevant policies, programs and funding; and
  • proactively engage children and young people in decisions which affect them.

2.21      Clause 3 also specifies that the establishment of the Commonwealth Commissioner is intended to assist Australia in meeting is obligations under the UN CRC, particularly identifying the following articles of the CRC:

  • Article 2: non-discrimination in the applicability of children's rights;
  • Article 4: the primacy of the consideration of the child's best interests;
  • Article 6(1): the child's right to survival and development; and
  • Article 12: the child's right to participation in decision-making.

2.22      Clause 4 identifies the particular principles of the CRC which apply to the Commonwealth Commissioner in exercising powers and undertaking duties as Commissioner. These include: supporting the family as having the primary responsibility for raising children and their development; valuing children as members of society; children's right to be protected from abuse, exploitation and discrimination, and to form and express views and have these taken into account; and having a child's best interest as a primary concern when making decisions.

2.23      Clause 5 provides that the term 'children and young people' includes all people below the age of 18 years.

2.24      Clause 6 and 7 provide that the Act is not intended to 'exclude or limit' the operation of similar state or territory legislation which can operate concurrently with the Act, and that the Act will apply to all external territories.

Part 2 – Office of the Commonwealth Commissioner for Children and Young People

2.25      Part 2 provides for the establishment of the Office of the Commonwealth Commissioner for Children and Young People, as well as the functions, powers and operation of the Commonwealth Commissioner.

2.26      Clause 8 provides that the office will be constituted as a statutory agency, and will consist of the Commonwealth Commissioner, a Deputy Commissioner if necessary and staff as provided for in Part 3.

2.27      The functions and powers of the Commonwealth Commissioner are provided for in clause 9, and relate to all children and young people in Australia regardless of their citizenship or residency status. In addition to the objects outlined under clause 3, some of the key functions of the Commonwealth Commissioner include:

  • reviewing existing laws, proposing new policies, conducting research, undertaking inquiries and reporting to Parliament;
  • promoting and protecting the rights of children and young people in immigration detention, and where appropriate, acting as the legal guardian of unaccompanied minors who arrive in Australia without the requisite visa;
  • promoting public education programs about, and investment in, early childhood development; and
  • intervening in legal cases involving the rights of children and young people.

2.28      Clause 10 provides that in carrying out the aforementioned functions, the Commonwealth Commissioner must:

  • consult with children and young people, their parents and guardians, educators, relevant Commonwealth agencies, state and territory bodies and other organisations;
  • adopt work practices which ensure that the office is accessible to children and young people and encourages their participation;
  • take into consideration the concerns, views and wishes of children and young people; and
  • refer any individual matters to the appropriate authority.

2.29      The independence of the Commonwealth Commissioner is provided for under clause 11, which specifies that the Commonwealth Commissioner is not under the control or direction of the minister, and may report to Parliament on any matter related to his or her functions.

2.30      Clause 12 provides that the Commonwealth Commissioner is to work cooperatively with other Commonwealth agencies which provide or manage services, on issues affecting children and young people. The clause also specifies that the Commonwealth Commissioner must consult with state and territory governments to develop agreements regarding the cooperation and interaction of the office of the Commonwealth Commissioner and the relevant state and territory bodies.

Part 3 – Appointments and staffing for the Office of the Commissioner

2.31      Part 3 provides for the appointment of the Commonwealth Commissioner and one or more Deputy Commissioners, as well as the engagement of required staff and consultants.

2.32      Clauses 13‑21 provide that the Commonwealth Commissioner is appointed by the Governor-General, and that the Commissioner's term of office must not exceed five years. The terms and conditions of the Commonwealth Commissioner's employment are also specified in these clauses, and provision is made for the appointment of an Acting Commissioner in the absence of the Commonwealth Commissioner, or in the event of vacancy of the position.

2.33      The Governor-General may appoint one or more Deputy Commissioners to assist the Commonwealth Commissioner under clause 22.

Part 4 – Other Matters

2.34      Part 4 outlines the Commonwealth Commissioner's reporting obligations as well as the protections afforded to the Commonwealth Commissioner, and provides for a review of the Act's operation, and for the making of regulations.

2.35      Clause 25 stipulates that the Commonwealth Commissioner is responsible for preparing reports on behalf of Australia to the United Nations Committee on the Rights of the Child. In preparing the report, the Commonwealth Commissioner is to consult with Commonwealth agencies, state and territory bodies and non-government organisations. The Commonwealth Commissioner is to provide the report to the minister, who must transmit it to the Secretary-General of the United Nations as soon as practicable. The clause also states that nothing prevents the minister from preparing and submitting other reports to the UN Committee on the Rights of the Child on behalf of Australia.

2.36      Under clause 26 the Commonwealth Commissioner must prepare an annual report on the operations of the office for that year which must be presented to the minister and tabled in Parliament.

2.37      Clause 27 requires that a review of the Act be undertaken two years after the Act commences. A written report regarding the review must be prepared and tabled in Parliament.

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