CHAPTER 3
Main issues regarding the purpose and general provisions of the Bill
3.1
This chapter examines the main issues canvassed during the committee's
inquiry regarding the purpose of the Commonwealth Commissioner for Children and
Young People Bill 2010 (the Bill), and its general provisions. The principal
matters raised in the evidence regarding these issues concerned:
-
whether there is a need for a Commonwealth Commissioner for
Children and Young People (Commonwealth Commissioner), and if the Bill
addresses any such need;
-
how the Commission should be established;
-
how children and young people should be defined;
-
the object and principles underlying the Bill;
-
Australia's international obligations regarding children's
rights;
-
how the Commonwealth Commissioner might interact with state and
territory commissioners and guardians;
-
the independence of the Commonwealth Commissioner and the
reporting requirements specified in the Bill.
3.2
Issues raised regarding the functions and powers of the Commonwealth
Commissioner (principally matters arising under clauses 9 and 10),
are discussed in chapter 4.
Need for a Commonwealth Commissioner for Children and Young People
3.3
The majority of submissions supported the establishment of a Commonwealth
Commissioner. While numerous submitters raised issues with the Bill itself, and
suggested a series of amendments, submitters widely endorsed the creation of a
Commonwealth Commissioner for reasons ranging from the need to protect
vulnerable children, to requirements under international obligations.
3.4
Many submitters expressed support for the establishment of a
Commonwealth Commissioner due to concerns about the rights and treatment of
vulnerable children. Submitters noted that the establishment of a Commonwealth
Commissioner would ensure recognition of, and play a role in protecting, the
needs and rights of all children, enhance service delivery, and provide a much
needed advocate for children and young people, who are limited in their ability
to advocate for themselves.[1]
3.5
The Human Rights Law Resource Centre (HRLRC) explained that the need for
a Commonwealth Commissioner is evidenced by :
...the fact that children and young people often lack the
ability to effectively advocate for themselves or to independently engage with
the political or legal system. They cannot vote for their political
representatives, are not usually well resourced and are often not consulted in
the formulation of laws or policies, even those that directly affect them.[2]
3.6
Submitters also noted that there is a continuing need to ensure
accountability of the services to vulnerable children and young people,
particularly those in out-of-home care, in the child protection system, and
those in detention. The Ombudsman Victoria explained that in 2010 he had tabled
three reports regarding the failure of public bodies to act in compliance with
the Charter of Human Rights and Responsibilities Act 2006 in relation to
vulnerable children and young people. As a result of his investigations in each
case, he found that accountability is lacking in relation the services provided
to vulnerable children and young people.[3]
3.7
Many submitters were of the view that a Commonwealth Commissioner is required,
as responsibility for a number of the issues affecting the wellbeing of
children and young people lie within the Commonwealth's jurisdiction. For
example in the areas of family law, immigration, indigenous affairs and social
security, state and territory children’s commissioners and guardians have
limited influence. Submitters also noted that Commonwealth oversight is
required as 'responsibility for policy development, law reform and service delivery
is divided across federal, state and local government as well as between government
and community sectors.'[4]
3.8
Ms Anna Schulze from Save the Children Australia, acknowledged the role
played by existing state and territory commissioners and guardians, however put
the view that an overarching Commonwealth Commissioner is needed:
Whilst a number of our states and territories already have a
form of children’s commissioner or guardian, they vary in their roles and
powers. They do not have the mandate to deal with children’s issues at a
federal or international level and they have no coordinating body or authority
to drive national consistency. Most significantly, they do not cover all
children, notably those in immigration detention.[5]
3.9
In addition to arguments that a Commonwealth Commissioner will assist in
addressing gaps in the human rights of children in Australia and will assist in
meeting our international obligations under the United Nations (UN) Convention
on the Rights of the Child (CRC), submitters suggested that the
establishment of a Commonwealth Commissioner will provide national leadership
and improve coordination across jurisdictions.[6]
3.10
Submitters observed that many inquiries have recommended the establishment
of a children's commissioner, and that the establishment of a commissioner has
been advocated for by various stakeholders. Families Australia further commented
that the establishment of a Commonwealth Commissioner will bring Australia
'into line with practice in many other countries, such as New Zealand, Norway,
Sweden and England'.[7]
3.11
It was noted that the Australian Human Rights Commission (AHRC) has 'specific
legislative functions and responsibilities for the protection and promotion of
human rights, and monitoring Australia's compliance with its international
human rights obligations via public education, inquiries and complaints', and
considers obligations under the CRC. However, the AHRC is not specifically
resourced for a focus on children and young people.[8]
3.12
Further, submitters commented that the UN Committee on the Rights of the
Child has noted the absence of a national commissioner for children in
Australia.[9]
As the AHRC explained:
The United Nations Committee on the Rights of the Child has
expressed concern that there is no national commissioner with a specific
mandate for monitoring children’s rights in Australia. The Committee has also
noted that despite the valuable work of the Australian Human Rights Commission
in the area of children’s rights there is no unit devoted specifically to
children's rights at the Commission. Establishing a Commonwealth Commissioner
for Children and Young People would be an important step towards meeting
Australia's international obligations to protect and promote the rights of
children in Australia.[10]
3.13
At the committee's public hearing, Ms Cate McKenzie, of the Department
of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA),
informed the committee that the Government is currently considering the role of
a National Children's Commissioner as a priority project under the first
three-year implementation plan for the National Framework for Protecting
Australia's Children, which was agreed to by the Council of Australian
Governments (COAG). Ms McKenzie noted that the first three-year period
will end in September 2012, and it is expected that the issue would 'have
been resolved over the period of those three years'.[11]
Adequacy of the Bill
3.14
Despite support for the establishment of a Commonwealth Commissioner,
some submitters questioned whether the framework provided in the Bill was
appropriate. A number of submissions suggested amendments to the Bill to
'strengthen' and 'enhance' the operation, functions and powers of the
Commonwealth Commissioner.[12]
Others suggested that further consultation on the Bill is required before it is
passed, and that consultation with children in particular must be undertaken.[13]
3.15
It was contended by some submitters that while in their view the
establishment of a Commonwealth Commissioner is important, the proposed model
for the Commonwealth Commissioner outlined in the Bill should not proceed. These
submitters argued that the role and functions provided in the legislation
appear limited and are unlikely to provide the Commissioner with the required
capacity, independence or scope to enable them to effectively carry out the
proposed functions and secure the rights of children and young people in
practice. As a result one submitter commented that the Bill remained 'symbolic
rather than practical. That is, it’s primary purpose seems to be compliance
with UN charters as opposed to the provision of genuinely effective powers'.[14]
3.16
Some submitters did not support the Bill, claiming that some of the
functions outlined in the Bill are not appropriate and potentially conflict
with the powers provided in the Bill.[15]
Berry Street further noted:
The breadth of proposed functions and powers outlined in
Division 2 Section 9 require independence of government, a requirement to
represent and act on behalf of the government of the day...These distinct roles
should not be located with the one position.[16]
3.17
FamilyVoice Australia expressed concern that the overall approach of the
Bill treats children as 'autonomous individuals', who are detached from the
families they live with. In FamilyVoice Australia's view, this, in conjunction
with the Commissioner's role in facilitating Australia's compliance with
international obligations could mean that 'the Bill would potentially create a
powerful government body that could act to undermine parental efforts to
supervise the upbringing of their own children according to their best
judgement'.[17]
3.18
The Humanist Society of Victoria espoused a different view, suggesting
that a Commonwealth Commissioner:
...could oversee the formulation of universal guidelines
which protect the rights of parents to bring up their children in ways which
conform to their beliefs or traditions, while also protecting children against
any harm.[18]
3.19
Notably a joint submission by the Australian Children's Commissioners
and Guardians (ACCG), supported the creation of 'a national rights-based
advocate for children and young people', on the condition that such an advocate
would not duplicate the roles and functions of state and territory
commissioners and guardians. However, while noting the benefits such a role
could have at a national level, the ACCG did not support the Bill, due to
concern with some of the proposed functions, discussed further in
chapter 4.[19]
Establishment of the Commission
Model
3.20
Submitters expressed a number of differing opinions on the best model
for the Commonwealth Commissioner. Ms McKenzie of FaHCSIA explained to the
committee that the types of model vary:
...we understand that you can look at various positions along
the continuum from it being a rights based model right the way through to it being
a public health and wellbeing based model. And you get different advantages and
disadvantages out of the various models.[20]
3.21
Some submitters argued that the Commonwealth Commissioner should take a
rights-based approach rather than a welfare model approach which is
predominantly concerned with child protection.[21]
The AHRC explained that a human rights framework empowers children and young
people as rights-holding citizens who can make a meaningful contribution and
participate, as opposed to viewing them as the passive recipients of services
and welfare. According to the AHRC, a rights-based approach can:
...provide a clear framework for promoting, and for ensuring
accountability in respect of, child wellbeing. Human rights outline the minimum
standards necessary to ensure the wellbeing of children – including the right
to an adequate standard of living, the right to health care, the right to
education, the right to family life, the right to protection from violence, and
the right to participate in one’s culture. [22]
3.22
Conversely, the limitations of a rights-based framework were highlighted
in evidence to the committee:
Rights tend to address legally established minimums. One of
the consequences of using a rights-based framework is the tools and instruments
that flow from the use of the language and legislation ultimately operate
within a legal framework...Further, families, parents, guardians and other
important carers in a child or young person’s life can feel marginalised when
children’s rights are promoted. This approach can appear to ignore the others
in the family group and some in the community feel it interferes with the
important roles the family group plays in care, support, guidance, and decision‐making.[23]
3.23
PeakCare argued for a family welfare model such as that adopted in
Sweden and other European countries, as opposed to the current child protection
model.[24]
Another submitter argued that a broader wellbeing framework would be the most
appropriate approach for the Commonwealth Commissioner. This was described as
follows:
The wellbeing of children and young people includes their
care, development, education, health and safety and covers their physical,
mental, emotional and spiritual life. The perspective is about seeing children
as citizens, not as problems that need to be solved. It is an encompassing term
that is wider than rights but is inclusive of rights.[25]
3.24
Other submitters commented that a broader approach, not dominated by
either a legal/rights or a child protection/welfare approach, should be
adopted.[26]
Further, some evidence received by the committee indicated these approaches can
in fact complement each other: 'a comprehensive rights-based approach requires
interdisciplinary work complemented by other mechanisms, such as the wellbeing
approach.'[27]
3.25
Support was also expressed for a public health model, which places
emphasis on early intervention to prevent abuse and neglect.[28]
It was noted that the public health model is identified as an appropriate
approach in the National Framework for Protecting Australia's Children, and was
described to the committee as:
...a cascading set of sorted out roles and responsibilities
between levels of government. In short, the public health model is really
saying that there are three essential tiers of interventions and supports that
we might give to families, children and communities more broadly. At the top
level is early intervention and prevention services—those things that might be
universally applied in, say, public health type campaigns. At the secondary
level are the sorts of services that might be more targeted on specific family
needs, and they could be family support type programs delivered by, say, local
family or relationship service providers. The third level is the statutory
level and really refers to the legislatively mandated responsibilities or
statutory responsibilities, in this instance, of child protection authorities
to act in accordance with state and territory law.[29]
3.26
Families Australia in particular advocated strongly for the Commonwealth
Commissioner to reflect a public health model:
Specifically, the Commissioner ought to place strong emphasis
on examining systemic issues impacting on children and young people and on
promoting early intervention and prevention approaches based on a public health
model. Without such a high-level reference point, there may be a tendency for
the balance in the Commissioner’s work to shift toward examination of specific
cases, which would risk duplicating the work of the various State and Territory
Commissioners or Children's Guardians[30]
Structure
3.27
Submitters supported the establishment of the commission as a statutory
authority, in particular to ensure its independence.[31]
However, the committee received mixed evidence as to whether the Office of the
Commonwealth Commissioner for Children and Young People should be established
as a standalone office or as part of the AHRC.
3.28
Youth Legal Service noted their support for a Commission over a
Commissioner, to ensure the capacity to work across a number of policy areas
including education, health, legal and social work, and recommended the
development of a network of commission staff across Australia. In their view:
...the role is multifaceted, involving the dissemination of
information across the full gamut of children's services, thereby enabling the
whole of government approach that is a critical component to enshrining
children's rights into the national political spectrum.[32]
3.29
National Disability Services (NDS) suggested that the European model of
an ombudsman or commissioner be drawn on to reflect the intent of the UN CRC,
noting that the commissions currently in place in Australia do not reflect this
intent.[33]
3.30
Several submitters recommended that rather than an independent statutory
office, the Office of the Commonwealth Commissioner for Children and Young
People should be created within the AHRC. Berry Street supported an approach
similar to the Aboriginal and Torres Strait Islander Commissioner. Submitters
also pointed out that if the Commonwealth Commissioner is created within the
AHRC, the operating costs of the office would be reduced, however such a
structure would necessitate amendment of the Australian Human Rights
Commission Act 1986 (AHRC Act).[34]
3.31
The HRLRC noted that in 2002 the UN Committee on the Rights of the Child
had recommended that the Human Rights and Equal Opportunity Commission, now the
AHRC, 'be equipped to monitor the implementation of children's rights'.[35]
The HRLRC outlined the benefits of the Commonwealth Commissioner being
incorporated into the AHRC as follows:
a) the Children's Commissioner
would benefit from the expertise of the other Commissioners, particularly where
there are common functions and powers;
b) the Children's Commissioner would
be able to work more readily in conjunction with the Aboriginal and Torres
Strait Islander Social Justice Commissioner, the Disability Discrimination
Commissioner, the Race Discrimination Commissioner and the Sex Discrimination
Commissioner and Commissioner responsible for Age Discrimination where
appropriate;
c) the likelihood of any
overlap and duplication that may otherwise occur would be reduced.[36]
3.32
The Law Council of Australia (Law Council) noted further advantages in
incorporating the Commonwealth Commissioner into the AHRC, observing that if
the Commissioner was created as a member of the AHRC, the provisions of the
AHRC Act would apply, thereby negating some of the concerns held regarding the
drafting of the provisions of the Bill. Further, it was observed that this
model is adopted in the Australian Capital Territory, and appears to have
'merit'. However, the Law Council identified two possible disadvantages of this
approach: firstly, the limited resourcing of the AHRC was noted; and secondly,
the current practice of AHRC Commissioners acting in the role of other
Commissioners, has been looked upon unfavourably by the United Nations Committee
on the Elimination of Racial Discrimination. In light of these advantages and
disadvantages, the Law Council suggested the proposal warranted further
consideration by the committee.[37]
3.33
The Law Council of Australia also commented that even if the Commissioner
is not established within the AHRC, the series of more specific functions which
apply to all members of the AHRC should apply. These AHRC functions include:
examining enactments and proposed enactments, undertaking and coordinating
research and educational programs to promote human rights, intervening in legal
proceedings where appropriate and on its own initiative, or where required by the
minister, and suggesting potential laws or action to be taken by Parliament.[38]
3.34
The ACCG also cautioned that if the Commonwealth Commissioner was
incorporated into the AHRC:
Care would need to be taken to ensure that the Australian
Human Rights Commission's existing powers and functions regarding children and
young people are not reduced or diminished, particularly as they relate to
complaint handling and intervention in Court proceedings.[39]
3.35
Ms Nicole Cardinal of Save the Children Australia addressed concerns
raised regarding the creation of yet another commissioner, in addition to those
already within the AHRC:
...while we appreciate that certain commissioners who exist
within the Australian Human Rights Commission could cover certain issues for
children, they could not cover all issues—particularly issues to do with
education and health. Children are only able to make a complaint to the Australian
Human Rights Commission on the basis of age, race and sex discrimination—there
are huge gaps. We look at a children’s commissioner as being able to
comprehensively take the Convention on the Rights of the Child and ensure that
children have got a means of redress across all of those areas that impact
their lives.[40]
3.36
The Australian Christian Lobby emphasised its preference for the
Commonwealth Commissioner to be independent, and not 'subsumed' within the
AHRC.[41]
3.37
Several witnesses before the committee were non-committal in their
opinions as to whether the Commonwealth Commissioner should be housed within
the AHRC, noting that the ability of the Commonwealth Commissioner to perform
its functions was of more significance. As Ms Cardinal of Save the Children
Australia explained:
If it would make sense to have it in the Australian Human Rights
Commission then we support that. We think that it probably has more to do with
the detail. As long as the commissioner has got adequate resources, adequate
funding, a proper mandate and wide powers. If all of those characteristics are
able to be encompassed within the Australian Human Rights Commission, then so
be it. If it would in any way impact on their independence or their ability to
perform the role then we would be advocating for a role very much outside of
the Australian Human Rights Commission.[42]
Definition of children and young people
3.38
The definition of the term 'children and young people' attracted comment
with suggestions that it be extended to include those aged 25 years or
younger in certain circumstances, in particular to encompass those children and
young people leaving out-of-home care who are not yet independent.[43]
3.39
Berry Street noted that while the UN CRC provides that children and young
people are those between the ages of 0 and 18 years, the UN
definition of a child is a person under the age of 15, and youth are
defined as those between the ages of 15 and 24 years.
Berry Street argued that it is 'critical' that the Commonwealth Commissioner's
mandate should extend to include those aged 25 years as:
The Commonwealth has lead or sole responsibility for matters
relating to higher education, housing, housing assistance, income support,
primary health care, employment and labour market assistance. These are all
areas within which young people aged 18 to 25 could benefit from the
independent analysis that a Commissioner could provide. [44]
3.40
Concern was raised that the definition of the term 'children and young
people' is unclear, and could be interpreted to apply to persons who are not
below the age of 18 years. FamilyVoice Australia recommended that the
definition be amended to clearly state that the Commissioner does not have
powers in relation to young people 18 years of age or older.[45]
3.41
Other submitters also supported the definition of children and young
people as those under the age of 18 years.[46] In
evidence to the committee, Ms Schulze of Save the Children Australia explained:
We suggest for consistency with the Convention on the Rights
of the Child that we should use the same definition of child, which is
under 18. We also believe that there is a risk that, if the commissioner’s
focus is extended to include youths up to the age of 25, the focus may shift to
all of the issues that are significant with that group and detract from a focus
on early childhood and young children. We also recognise that there are
significant issues and the day someone turns 18, particularly if they have been
in contact with government in one form or another, to immediately say that you
are no longer afforded the protection of the children's commissioner. It would
be a challenge and perhaps unfair, so we are able to be swayed.[47]
3.42
Blind Citizens Australia commented that this definition shouldn't
preclude the Commonwealth Commissioner from 'addressing issues around the
transition of young people to adulthood' as the needs of young people should
not be 'forgotten or dismissed once a child turns 18'.[48]
3.43
The Law Council noted it supported the definition of children and young
people as persons under the age of 18 years as provided for in the Bill, and
that this is consistent with the relevant legislation in states and territories
in relation to children's commissioners and guardians. However, it was noted
that definitions in legislation in various state and territory jurisdictions do
vary based on age. For example in Queensland, the Youth Justice Act 1992
defines a child as a person under 17 years of age and has resulted in some
17 year old individuals being held in adult prisons in Queensland. The Law
Council also observed that some states and territories make an age-based
distinction between 'children' and 'young people', whereas the Bill does not.[49]
3.44
This was further substantiated by other submitters who noted that there
is considerable variation across jurisdictions in relation to the age at which
government assistance ceases for those young people transitioning from
out-of-home care. It was noted that in one state, support is provided until the
age of 25 years, while other states 'terminate assistance between 19 and
21 years'.[50]
3.45
Families Australia recommended that the Commonwealth Commissioner should
not ignore the needs and interests of people above the age of 18, in particular
those who transition from out-of-home care to independent living, and those
people who have been subjected to past abuses as children. In relation to the
latter, Families Australia particularly mentioned the Stolen Generation,
Forgotten Australians and former Child Migrants, and stated that it is:
...important that the Commissioner be empowered to play a
role in relation to past abuses perpetrated on children. This may, for example,
take the form of providing evidence to official inquiries or advising on policy
matters where past practice is of relevance...[51]
3.46
Associate Professor Philip Mendes supported the Commonwealth
Commissioner having responsibility for young people leaving out-of-home care
until they reach at least 25 years of age. Professor Mendes noted that in
the United Kingdom (UK), state authorities continue to take responsibility for
the welfare of young people who have been in out-of-home care until they are at
least 21 years old. Professor Mendes suggested that :
A national leaving care framework similar to the UK would
arguably address a number of key weaknesses of the existing Australian system
such as the wide variation in policy and legislation between the states and territories,
and the absence of support for young people who shift from one jurisdiction to
another. It would also improve opportunities for national benchmarking, and
place pressure on poorer services to improve their standards.[52]
3.47
In his submission, Professor Mendes argued that the transition from care
should be flexible and gradual 'based on levels of maturity and skill development,
rather than simply age'. In Professor Mendes' view it is not reasonable to
expect care leavers to 'attain instant adulthood'. Further Professor Mendes
suggested the establishment of a national database to monitor care leavers and
measure outcomes in key areas, and 'analyse differences in the effectiveness of
various states and territories and NGO policies and programs'.[53]
3.48
Mr Julian Pocock, representing Berry Street, emphasised that policy in
Australia does not effectively support young people, and consequently their
needs should be within the remit of the Commonwealth Commissioner:
...young people between the ages of 18 and 25 are a
group within the Australian community for whom there are significant
transitional issues as they move from dependence to independence. It is an area
where Australia certainly has a long way to go in providing the right policy frameworks
and assistance to ensure that all young people in that age bracket make a
successful transition to independence. So we believe the role of the
commissioner should be extended to cover young people in that age bracket and
should have a focus on matters that could assist them to make that transition
to independence.[54]
Object and principles of the Bill
3.49
Various suggestions for refining the objects and principles of the Bill
were received, with submitters suggesting that the provisions in this part of
the Bill should be more focussed and detailed.
3.50
Some submitters argued that the provisions of the Bill should be
consistent with the UN CRC obligations, have reference to additional articles
of the CRC and its Optional Protocols, and some submitters even suggested that
the text of the CRC be incorporated into the legislation itself.[55]
3.51
Families Australia and Children with Disability Australia made a number
of suggestions to incorporate principles from various articles in the UN CRC into
the objects and principles of the Bill. In particular, Families Australia
advocated for specific reference to:
-
the 'best interests' principle as outlined in article 3(1)
of the UN CRC, and a definition linking the term to the UN CRC;[56]
-
children's wellbeing and rights, in particular the wellbeing of
Aboriginal and Torres Strait Islander children and young people, which 'draws
upon the principles which were agreed in 2009 by all Australian Governments' in
the National Framework for Protecting Australia's Children, to reflect the
Australian context of the application of the UN CRC;[57]
and
-
every child's entitlement to continuing contact with parents, and
that separation of children and young people from their parents should only
occur where it is in the best interests of the child.[58]
3.52
A series of submitters suggested that the Bill should also particularly reference
article 23 of the UN CRC and the UN Convention on the Rights of Persons
with Disabilities (CRPD), article 7, regarding children with disabilities.[59]
Children with Disability Australia further submitted that a child's right to
family under article 23 of the CRPD is vitally important and must be
upheld, particularly as:
...families of children with disability are extremely strong advocates
for their child, have an intimate knowledge and expertise regarding their child’s
needs and wishes. The role of a National Children’s Commissioner should not negate
this role but rather enhance and allow collaborative advocacy to occur which enhances
the realisation of children’s rights and expression of their opinions and opportunities
to participate.[60]
3.53
The committee also received suggestions that the object and principles
should focus on vulnerable children and young people, particularly Aboriginal
and Torres Strait Islander children and young people.[61]
In addition, it was recommended that the object of the Bill should be to
'promote and advocate for the wellbeing of children and young people', and that
this object be reflected throughout the Bill itself.[62]
The Child Abuse Prevention Research Centre (CAPRA) also suggested that
reference be made to protecting children and young people.[63]
3.54
CAPRA further suggested that the principal functions of the Commonwealth
Commissioner outlined in clause 3 be specified in more detail.[64]
Catholic Social Services Australia (CSSA) noted that the AHRC October 2010
discussion paper provides greater clarity about what the role of the
Commonwealth Commissioner should be.[65]
Further issues raised regarding the functions of the Commonwealth Commissioner
are discussed in more detail in chapter 4.
3.55
The Law Council noted that the reference to article 2 of the UN CRC
in subclause 3(3) should be a reference to article 3, and recommended that
the reference should be amended.[66]
Australia's international obligations
3.56
Submitters generally supported the establishment of a Commonwealth
Commissioner to assist Australia in meeting its international obligations,
particularly under the CRC. Families Australia noted that the UN Committee on
the Rights of the Child has recommended that all governments should create
human rights institutions for children to assist in monitoring, promoting and
protecting children's rights.[67]
3.57
In providing evidence to the committee, Ms Schulze, Save the Children
Australia, informed the committee that the absence of a national children's
commissioner in Australia has been noted in the international sphere:
In 2005 the UN committee responsible for monitoring states'
obligations under the CRC expressed concern regarding Australia's lack of a
national commissioner for children's rights. It was also a recommendation
following Australia's universal periodic review by the UN Human Rights Council
in January of this year. The establishment of a commissioner would clearly be a
significant step forward in meeting Australia's international legal obligations
under the CRC.[68]
3.58
This lack of compliance with international obligations on human rights,
in particular under the CRC and the Convention Relating to the Status of
Refugees was noted by submitters.[69]
3.59
The Youth Advocacy Centre (YAC) noted that state and territory
governments are not signatories to the UN CRC and are not directly accountable
to the UN for any breach of the CRC in their jurisdiction. YAC suggested that a
Commonwealth Commissioner 'would play an important role in linking individual states
and territories to Australia’s international obligations under the Convention
of the Rights of the Child in a federated system'. In particular, YAC pointed to
the situation in Queensland under which people who are 17 years of age are
included in the adult criminal justice system, which YAC characterised as a
'clear breach' of Australia's obligations under the UN CRC. YAC further
commented that:
A Commonwealth Commissioner would provide a critical level of
critique and analysis at the Federal level, when States and Territories fail to
observe and implement Convention standards.[70]
3.60
The Public Interest Advocacy Centre (PIAC) suggested that Australia’s
international obligations to protect and promote the rights of children and
young people should be embodied in Commonwealth-State agreements.[71]
BoysTown further proposed that Australia's obligations under other
international agreements be reviewed to ensure that the Bill encompasses all
required commitments.[72]
3.61
Ms Rosemary Budavari, appearing on behalf of the Law Council of
Australia, explained to the committee that in the Law Council's view:
...any convention obligations should be implemented into
domestic legislation fully. We have contributed to reports to a number of those
UN committees which make that point, and we make that point to ministers of the
government of both persuasions regularly.[73]
3.62
However, other submitters did not agree with the approach proposed by
the Bill. FamilyVoice Australia was concerned that this would undermine
parental rights and facilitate the intervention of international committees,
such as the UN Committee on the Rights of the Child, in the laws of Australia's
states and territories.[74]
Interaction with state and territory commissioners and guardians
3.63
A series of submitters raised concerns that the proposed monitoring
roles and powers of the Commonwealth Commissioner will duplicate the roles of
the current state and territory commissioners and guardians, resulting in an
ineffective and resource intensive system. It was suggested that the
Commonwealth Commissioner should monitor the interaction of Commonwealth and
state and territory laws and focus on the implementation of children's rights
in the international context at a federal level.[75]
3.64
FamilyVoice Australia submitted that, as currently drafted, the Bill
empowers the Commonwealth Commissioner to 'interfere in matters which are
clearly the responsibility of the States'. Its submission noted that the powers
of the Commonwealth Commissioner are not limited to laws of the Commonwealth,
as references in the provisions of the Bill refer to 'laws' generally.[76]
FamilyVoice Australia recommended that the Bill be redrafted to ensure that the
powers of the Commonwealth Commissioner are limited to matters of direct
Commonwealth responsibility.[77]
3.65
Children's Hospitals Australasia argued that the responsibility of
monitoring protective services should remain with the states and territories
because without adequate resourcing and support, 'the complexity and volume of
this work can be overwhelming' and 'can unintentionally divert attention away
from the advocacy and policy functions'.[78]
3.66
In contrast, Mission Australia recommended that the Bill should specify
that the Commonwealth Commissioner have purview of Commonwealth and state and
territory laws which affect children and young people.[79]
3.67
The ACCG, represented by Ms Elizabeth Fraser, Queensland Commissioner
for Children and Young People and Child Guardian, noted that while the ACCG
have concerns about duplication of functions, there is still a role for the
Commonwealth Commissioner to play:
I guess we would not see the national commissioner role as
necessarily moving into the sorts of areas where children are actually involved
in state-directed services under the legislation within the states and
territories, but that they would look at broader rights and whether or not
there was an oversight of that within the jurisdictions; in particular, looking
at things like income protection security, some of the national health early
childhood and family law...In our advocacy there we would like to see this
position really pick up on the rights in the national and international frame
and add value to the work that is already happening, and if that work is not
happening to the same level in the states then advocating that it should.[80]
3.68
The Employment Law Centre of Western Australia agreed that there are a
number of issues affecting children and young people which fall within the
Commonwealth's jurisdiction:
...such as immigration, social security and family law. There
are also many issues faced by Australian children which affect children around
the country, and which should be addressed from a national perspective. These
include issues such as homelessness and access to justice.[81]
3.69
A large number of submitters called for clearer delineation of
responsibilities between Commonwealth and state and territory commissioners and
guardians, in consultation with the relevant state and territory commissioners
and guardians.[82]
Families Australia recommended that:
...for public clarity and to avoid duplication of effort, the
roles and responsibility of the national and State/Territory Children’s
Commissioners, and their inter-relationships, should be more clearly defined.
In effect, we suggest that there be a cascading national system which defines
the powers, roles and functions which are appropriate to a Commonwealth
Commissioner and those which should properly be handled at a State and
Territory level. This would be a longer-term goal and not part of the initial
Act, although we do recommend that the Bill encourage the longer-term
development of common approaches across jurisdictions in matters such as
performance reporting and monitoring...[83]
3.70
At the committee's public hearing, Ms Prue Warrilow, Chair, Families
Australia, further explained how the line between the functions of state and
territory commissioners and guardians, and a Commonwealth Commissioner might be
drawn:
You would need to have some specificity about the roles and
responsibilities. A focus on the wellbeing of Australia’s children is a much
broader remit than most of the state and territory commissioners and guardians.
If you look at the Commonwealth policy frameworks—I am particularly referring
to the National Framework for Protecting Australia’s Children and the National
Quality Agenda for Early Childhood Education and Care—they are all about
children’s wellbeing, so they enable a Commonwealth delineation around the
state rules...
They still involve state and territory responsibilities and
input, but ultimately those frameworks are sitting within a national agenda and
within Commonwealth responsibilities.[84]
3.71
The Centre for Excellence in Child and Family Welfare suggested that the
state and territory commissioners and guardians be formally linked under the
office of the Commonwealth Commissioner.[85]
However the ACCG did not support this approach and argued that:
A single, central national office would have significant
difficulties in effectively monitoring and overseeing the delivery of services
to children and young people in all states and territories. This is further
complicated as each state and territory has different child protection system
and youth justice arrangements.[86]
3.72
A further matter noted in the evidence received by the committee is the
differing powers of children's commissioners and guardians across various
states and territories. Families Australia explained that while in some
jurisdictions the commissioner or guardian may be 'mandated to take a broader
children's wellbeing perspective', other commissioners and guardians focus on
specific cases.[87]
The committee also received evidence on the operation, functions, and in some
cases limited powers and resources of some of the current state and territory
commissioners and guardians from the Law Council, the Ombudsman Victoria, and
other submitters.[88]
3.73
PeakCare suggested that given the inconsistencies across jurisdictions, the
Commonwealth Commissioner could play an important role in aligning and
integrating standards and legislation, as:
The lack of consistency around the jurisdictions can cause concern
and hardship for children and young people and can allow for children and young
people to miss access to services if they move around the country. Some
examples of this complexity are the school entry age, a lack of a national
school curriculum, the after care service provision for children and young
people leaving state care and the differences in thresholds for receiving state
services once neglect or abuse has been reported and substantiated.[89]
3.74
Women Everywhere Advocating Violence Eradication (WEAVE) noted that due
to the 'two tiered system' of responsibility for children and young people in
Australia, the Commonwealth Commissioner would have an important role:
It is reasonable to expect that the most important role for
the National Commissioner for Children and Young People would be at the point
at which state and federal systems overlap or at the point where poor
coordination of state and federal responsibilities leave children vulnerable to
poor outcomes.[90]
3.75
In this respect, Dr Ken Baker of NDS explained to the committee the
ability of the Commonwealth Commissioner to take a national approach which
cannot be undertaken by the states:
Clearly there is risk here of duplication. I am aware of
those risks and they would need to be managed well. However, I think there are
also some opportunities that could arise from the establishment of a Commonwealth
children’s commissioner that do not exist at state level...There is also an
opportunity for a Commonwealth commissioner to look across states and
territories, compare what they are doing and see things that may be working
well in one state that other states are not doing and use that. It could be a
mechanism for disseminating best practice across Australia.[91]
3.76
While PIAC suggested that cooperation from state and territory
governments be encouraged through 'the inclusion of conditions in relevant
Commonwealth-State funding agreements',[92]
the Law Council noted the provision for the referral of matters to the
appropriate authority under paragraph 10(g). The Law Council was of the
view that that this will 'foster interaction with the State and Territory
Children’s Commissioners, particularly with those who deal with individual
complaints'.[93]
3.77
Ms Budavari of the Law Council of Australia noted that in the Law
Council's view, the role of the Commonwealth Commissioner would 'complement the
functions of existing children's commissioners and guardians in the states and
territories', however to avoid duplication of functions, the role of the
Commonwealth Commissioner will need to be focussed:
We do support the concurrent operation of state and territory
laws relating to children’s commissioners and guardians and relating to
children’s rights generally, given the particular division of constitutional
responsibilities that we have in Australia in relation to children’s matters.
But due to that division and due to the existing bodies we feel that the
commissioner will need to focus on Commonwealth laws and really only examine
state and territory laws and policies in the sense that they interact with
Commonwealth laws.[94]
3.78
Ms Fraser, representing the ACCG, emphasised that a Commonwealth
Commissioner is supported by the ACCG but that a clear, well planned structure
must be in place for it to operate successfully:
We would be more than happy to work together, but I think an
important aspect of that is having the structure and the governance
arrangements worked through so that there are opportunities to optimise that
linking and meeting and working together. We currently, as state commissioners
around Australia, meet twice a year to talk about what is happening in the
various jurisdictions...So I do not think it would be problematic for the
relationship to work, for that collaboration to occur and for good work to be progressed
by people. But I think you have to start from a base that is reasonably clear
in terms of roles and responsibilities. Also, for the public, I think it is
important for them to have a view because, as you can read from some of the
submissions, some people have a strong expectation that if we have a national
commissioner then everything will be fixed or that they will deal with
complaints.[95]
Independence of the office and reporting requirements
3.79
Strong arguments for ensuring that the office is independent were put
forward in several submissions.[96]
It was noted that in some states and territories, the commissioner's
independence is compromised due to the incorporation of the office into a
government department.[97]
Funding
3.80
A common theme throughout the submissions received was the call for the
Commission to be adequately resourced, and have guaranteed funding.[98]
In particular, the Aboriginal and Torres Strait Islander Legal Service (ATSILS)
and BoysTown were concerned to ensure that the resourcing of the Commission be
subject to Parliament rather than the Government.[99]
Mallesons Stephen Jaques Human Rights Law Group suggested that to address these
concerns, a provision similar to that under section 52B of the South Australian
Child Protection Act 1993 be included, stating:
The Minister must ensure that the Commissioner is provided
with the staff and other resources that the Commissioner reasonably needs for carrying
out its functions under this Act.[100]
3.81
Clarification was also sought in regards to the process by which the
Commonwealth Commissioner is to engage consultants. In particular, Families
Australia suggested clause 24 be clarified to ensure that the Commonwealth
Commissioner will not be restricted in engaging consultants due to any
obligation to obtain Commonwealth approval to engage a consultant.[101]
Appointment of the Commonwealth
Commissioner
3.82
Submitters were also concerned to ensure that appointment processes will
not affect the independence of the Commonwealth Commissioner. CAPRA raised
concerns that the appointment of the Commonwealth Commissioner by the minister
may affect the independence of the position, and suggested that 'appointment processes
remain distinct from Government influence'. Further:
Although it may be argued that independence of action is
separate from the matter of appointment and reporting, the proximity between
the two components of the Commissioner process, renders it very difficult for
the Bill as presently drafted to guarantee genuine transparency and
independence from Ministerial influence. [102]
3.83
To ensure independence, it was suggested a wide range of relevant bodies
be consulted before the Commonwealth Commissioner is appointed. Submitters also
suggested that children should have a say in the appointment of the
Commonwealth Commissioner, noting that children and young people have
successfully been involved in the appointment of children's commissioners
overseas.[103]
3.84
Families Australia suggested that further consideration be given to the
12 month limit on a person acting in the position of the Commissioner.
Other submitters also commented on ensuring the security of tenure of the
Commonwealth Commissioner.[104]
Reporting requirements
3.85
Submitters raised a series of concerns regarding the scope of the
Commonwealth Commissioner's reporting requirements outlined in the Bill, and
their potential impact on the Commonwealth Commissioner's independence.
3.86
A number of submitters were of the view that the Commonwealth
Commissioner should report directly to Parliament rather than to a minister,
and this should be specifically provided for in the Bill. The Centre for
Excellence in Child and Family Welfare further suggested that a similar
reporting line should be adopted at the state and territory level.[105]
3.87
A common argument raised in submissions was that the Commonwealth
Commissioner should not prepare reports required under the UN CRC on behalf of
the Australian Government to the UN Committee on the Rights of the Child as
this may compromise the Commissioner's independence. Rather, any reports should
be made independently to the UN.[106]
As Families Australia elucidated:
As a States Party to UNCRC, the Australian Government alone
has the responsibility for preparing its report on the nation’s performance
under UNCRC. If the Commissioner is to remain independent, and to be seen to be
independent, that Office must not be put in a position of potentially having to
balance the official views of the Australian Government with those which the
Commissioner might have formed through independent analysis and consultation.
Rather, it is the proper role of the Commissioner to prepare his or her own
report about Australia's performance under UNCRC without fear or favour, and it
is appropriate for this report to be made public[107]
3.88
The HRLRC also disagreed with the Commonwealth Commissioner producing
Australia's report to the UN, and suggested that the Commonwealth Commissioner
should instead contribute to the AHRC reports under the CRC.[108]
3.89
Several submitters suggested that concerns regarding the Commonwealth
Commissioner's reporting responsibilities could be addressed through amendments
to the Bill. Some submitters were of the view that the Bill should specify that
the minister is required to provide the Commonwealth Commissioner's report to
the UN Secretary General in its entirety and without revision
or omission.[109]
Dr Rebecca Newton, representing CAPRA, explained that concerns regarding the
potential impact of the Commonwealth Commissioner's reporting requirements on
the independence of the role could easily be addressed through clarification in
the Bill:
I think there is scope to clarify that any report that is
made by the commissioner is done so in addition to government reports. My
principal concern with reporting requirements is that the commissioner and any
reporting that they undertake remain independent of government and that they
have the scope to report freely on certain matters. It needs to be genuinely
independent from ministerial control...It may be a case of clarifying in the
legislation that the commissioner’s reports are in addition to government
reports.[110]
3.90
Other submitters noted their support for the responsibility endowed on
the Commonwealth Commissioner to report to the UN Committee on the Rights of
the Child. ATSILS further commented that the Commission should also 'report on Australia’s
obligations in respect to other relevant Conventions which relate to children
and young people.[111]
3.91
Youthlaw saw the Commonwealth Commissioner's role differently:
The Commissioner should contribute independently to the
reporting process under CROC and other relevant international instruments and
monitor the integrity of government reports to international treaty bodies with
respect to children’s rights.[112]
3.92
Submitters also suggested that the Commonwealth Commissioner's report to
Parliament should reflect on and provide analysis of: the status of children
and young people; any observed gaps or weaknesses in policy and programs; any
systemic issues identified; progress or barriers to progress on the rights of
children and young people, particularly through key policies, frameworks and
programs; and should make recommendation. Further, submitters argued that all
reports produced by the Commonwealth Commissioner should be publicly available.[113]
Other issues
3.93
Submitters also briefly raised a series of other matters with the
committee.
3.94
The committee received evidence suggesting that the Commonwealth
Commissioner should be called the 'Australian Commissioner for Children and
Young People' to reflect its international role, and to enable the Commissioner
to be distinguished from other commissioners internationally.[114]
Alternatively, Berry Street suggested the appropriate title should be 'National
Commissioner for Children and Young People'.[115]
3.95
One submitter suggested that the statutory review period be extended as
the period will not encompass a report to the UN Committee on the rights of the
child. It was argued that the 'statutory review period should be extended to
allow for a complete cycle in which the Commissioners functions are tested'.[116]
3.96
CAPRA suggested that the term 'promoting the rights' be replaced with
'promoting and protecting the rights' to ensure proper compliance with
international obligations, and consistency.[117]
3.97
Various submitters suggested that for the sake of consistency, the term
'indigenous' should be replaced with 'Aboriginal and Torres Strait Islander'.[118]
3.98
Privacy NSW noted that there is no provision pertaining to the privacy protection
of children and young people, and consequently suggested that the Commonwealth
Commissioner be empowered to refer policy matters and complaints relating to
the privacy of children and young people to the Australian Privacy
Commissioner, with the consent of the person in question or their guardian.[119]
3.99
The Law Society of New South Wales suggested that the Bill should
specify accountability mechanisms to ensure that the Commonwealth Commissioner
is accountable to the public, possibly through being subject to freedom of
information requirements, and requirements to keep adequate records and make
regular reports.[120]
3.100
The Law Council noted the provision pertaining to the privileges and
immunities afforded to the Commonwealth Commissioner (clause 28), and suggested
that these be limited to apply in the same way as those applying to the AHRC,
even if the Commonwealth Commissioner is not created within the AHRC.[121]
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