Chapter 1 National Children’s
Commissioner Bill 2012
The Australian Human Rights Commission Amendment (National Children’s
Commissioner) Bill 2012 (hereafter referred to as the NCC Bill) was introduced
to the House of Representatives on 23 May 2012.
Scope of the Bill
The NCC Bill establishes the statutory office of the National Children’s
Commissioner (the Commissioner) in the Australian Human Rights Commission. The
Commissioner will promote public discussion and awareness of issues affecting
children, conduct research and education programs and consult directly with
children and representative organisations. The Commissioner will also examine Commonwealth
legislation, policies and programs that relate to children’s human rights,
wellbeing and development.
The objectives of establishing the Commissioner are:
n to improve advocacy
for the rights, wellbeing and development of children at the national level;
n to improve monitoring
of enactments and proposed enactments of Commonwealth laws affecting the
rights, wellbeing and development of children;
n to promote cooperation
between the Commonwealth, states and territories to promote the rights,
wellbeing and development of children;
n to encourage the
active involvement of children in decisions that affect them, particularly
administrative decisions and the development of government policies programs
n to support government
agencies to develop mechanisms that enhance the active involvement of children;
n to assist Australia
in meeting its international obligations by promoting and advancing the rights
of the child.
Referral of the Bill
On 24 May 2012 the Selection Committee referred the NCC Bill to the
House of Representatives Social Policy and Legal and Affairs Committee for
inquiry and report.
Reason for referral
The Selection Committee provided the following reasons for
referral/principal issues for consideration:
The adequacy of funding for the functions of the National
Children’s Commissioner and whether any existing functions of the Australian
Human Rights Commission will be compromised thereby. Also, the interoperability
of the functions of the National Children’s Commissioner with state and
territory child welfare and guardian responsibilities.
Previous inquiries and consultations
A central priority under the National Framework for Protecting
Australia’s Children 2009 – 2020 is advocacy for children and young people. In
line with this priority, the Commonwealth committed to examine the potential
role of a National Children’s Commissioner.
In 2009 and 2010, the Department of Families, Housing, Community
Services and Indigenous Affairs (FaHCSIA) conducted considerable consultation about
a National Children’s Commissioner with key stakeholders, including with state
and territory children’s commissioners and guardians, state and territory
governments, and the community generally.
These consultations demonstrated that while stakeholders generally
strongly supported the establishment of a national Commissioner, at that time, there
was some disagreement as to the appropriate model, responsibilities and
functions of the Commissioner.
Due to the variety of stakeholder views, the Government undertook further
targeted consultations to determine whether general consensus could be reached
on the role and functions of a national Commissioner.
In December 2011, FaHCSIA drafted a Discussion Paper
and requested feedback from non-government organisations, State and Territory
National Framework Implementation Working Group members, and state and
territory children’s commissioners and guardians.
The Committee acknowledges that significant planning and consultation
with states and non-government organisations has informed the development of
current proposal for the Commissioner.
Concurrent Senate inquiry
On 23 May 2012 the Senate referred the NCC Bill to the Senate Standing
Committee on Legal and Constitutional Affairs for inquiry and report.
The Senate Committee issued a call for submissions and received 59 submissions
from a range of organisations across Australia. A public hearing was conducted
on 8 June 2012. The Committee reported on 18 June 2012.
The Senate Committee report recommended the Bill be passed without
amendment. Additional comments by Coalition Senators supported the Bill while
noting that importance of a cooperative approach with states. Senator
Hanson-Young supported the Bill while also providing additional comments
recommending an expansion on certain functions of the Commissioner.
Conduct of this inquiry
On several occasions previously, Senate and House committees have been
referred concurrent inquiries. In those instances, this Committee has
endeavoured not to duplicate inquiries and not to burden stakeholders with
multiple requests for submissions on the same Bill.
While the Senate and House committee deliberations and reports are
autonomous, it is recognised that both committees would be seeking evidence
from similar stakeholders. Consequently, it was agreed by this Committee to
make use of the submissions received as evidence to the Senate inquiry, rather
than issue a separate call for submissions to the same stakeholders.
This report references the submissions received by the Senate Legal and
Constitutional Affairs Committee. These submissions can be accessed at the
Senate inquiry website.
The Senate Committee conducted a public hearing, the transcript of which
can be accessed at the Senate inquiry website. The Senate final report
can also be accessed at the Senate inquiry website.
At Senate Estimates hearings on 23 May 2012, questions were posed
regarding the establishment, role, functions and funding of the National
Children’s Commissioner. The transcript of the Senate Estimates hearings is
available on the Senate website.
Given the extensive range of submissions received by the Senate inquiry
and the evidence presented at the Senate public hearing, this Committee did not
consider it necessary to conduct further hearings.
The Committee provided questions on notice to the Australian Human
Rights Commission to clarify issues of particular concern to this Committee.
The Committee notes that overwhelming support is expressed for the NCC
Bill in the 59 submissions to the Senate inquiry. However, there are a number
of general concerns raised in many of the submissions.
Several submissions suggest that the Commissioner should have specific
regard to the rights of particularly vulnerable children, such as Aboriginal
and Torres Strait Islander children, children in immigration detention in
Australia and children with disabilities.
Many suggest that the Commissioner should have a positive duty to engage
Numerous submissions call for an extension of the list of international
treaties to which the Commissioner must have regard. In particular, there is
support for the addition of the Convention Against Torture and Cruel,
Inhuman or Degrading Treatment and its Optional Protocol, the
Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict and the Optional Protocol to
the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography.
There have also been suggestions that the title of the Commissioner be
amended to ‘Australian Children’s Commissioner’.
The Committee considers that these issues have been adequately addressed
in the Senate inquiry into the NCC Bill and need not be reconsidered in detail
in this inquiry.
Consequently the Committee has focused its inquiry on the issues for
consideration suggested by the Selection Committee, namely the adequacy of the
funding allocated for this position and the interoperability of the National
Children’s Commissioner with the commissioners and guardians of the states and
territories. These issues are considered in the following sections.
Adequacy of funding
Several submissions express concern that the allocated $3.5 million in funding
will not be sufficient for the Commissioner to successfully fulfil the role.
There is concern that the limited funding may render the Commissioner’s establishment
Some submissions note that state and territory commissioners receive
significantly more funding than is currently proposed for the national
The Australian Human Rights Commission’s submission expresses concern
that the funding ‘would not by itself meet the real cost of creating this
At Senate Estimates hearings on 23 May 2012, the Hon. Catherine Branson,
Australian Human Rights Commissioner, noted the inadequacy of the funding if,
as predicted, complaints to the Commission increase:
That funding will enable us to provide staff: not a
substantial number of staff, but staff for that commissioner – probably a
personal assistant and two other support staff...the funding itself is not
adequate if we choose to give those staff, which we regard as essentially the
minimum with which a commissioner can effectively work, adequate resources for
what we would expect to be a rise in complaints made under the Convention on
the Rights of the Child.... the Commission expects that there will be a rise in
complaints of breaches of the CRC made to the Commission under the Australian
Human Rights Commission Act 1986 (Cth) and of the Age Discrmination Act
2004 (Cth)...it is our experience that the number of complaints go up with
a new commissioner.
The Commission’s responses to questions
on notice also outline these concerns and further note:
[T]he Commission has had to make arrangements to alter its
office fit-out in order to provide an office for the Commissioner and
work-stations for the Commissioner’s staff. No specific funding has been
provided for this purpose.
The Australian Human Rights Commission’s submission also outlines concerns
that the funding will not cover project work:
Nor will the funding announced be adequate to allow the
Commissioner to engage in any substantial project work. A high quality annual
report would ideally be informed by work of this kind.
It also notes that the production of an
annual report, as required by this Bill, is a particularly resource-intensive
undertaking. The Commission’s
responses to questions on notice state that:
The Commission allocates a team director and two project
staff to prepare these reports. The funding provided for the Children’s
Commissioner is not sufficient to provide an equivalent level of staff for a
Finally, the Commission notes in its submission:
There will also be additional demands made on the other
Commission staff, including on our legal and communications teams as well as on
finance and personnel staff. This increase in the general workload of the
Commission is not recognised in the amount of funding that has been provided
for in the creation of the position.
Ms Branson reiterated these concerns at
Senate Estimates hearings and they are restated in
the Commission’ responses to questions on notice.
Interoperability with state and territory agencies
The Senate inquiry received submissions from the Australian Children’s
Commissioners and Guardians, the Commissioner for Children and Young People
Western Australia and Council for the Care of Children Government of South
Australia. There was strong support for the establishment of a National
Children’s Commissioner from the children’s commissioners in all states and
Many submissions emphasised that a National Children’s Commissioner must
work cooperatively with relevant state and territory bodies and must not
duplicate the work of these bodies.
At the Senate Estimates hearings, Ms Branson noted the lengthy planning
and consultation process that had taken place on this issue in the development
of the proposal for the national Commissioner, stating:
There has been quite long term consideration of [the
relationship between a national children’s commissioner and the guardians and
children’s commissioner at state and territory level].... [t]he topic of the
possibility of establishing a national children’s commissioner has been under
consideration for some time.
Ms Branson noted that state and territory commissioners and guardians’
representatives also made a combined submission to the Attorney‑General’s
Department supporting the establishment of a National Children’s Commissioner,
Within that group there is a high level of confidence that a
National Commissioner will enhance their work and that the cooperative
relationship that already exists between them and the Australian Human Rights
Commission will continue.
Some submissions point out that while state services for children play
an important role in examining state policy and legislation, there are also
vital national policy areas that affect children, such as immigration or social
Similarly, the Commission notes that the Commonwealth, states and
territories have different areas of responsibility regarding the rights and
interests of children:
The Commonwealth government is responsible for ensuring that
Australia meets its obligations under the CRC. Children’s rights and interests
are impacted by policies and services that fall within the Commonwealth’s
powers, for example income support and family law. However, states and
territories have responsibility for the provision of many other services that
affect children, including health and education.
The Commission envisages that the National Children’s
Commissioner would take primary responsibility for policy work regarding issues
affecting the rights and interests of children that are a Commonwealth
responsibility. However, on occasion, the National Children’s Commissioner
might conduct work on issues that are also of interest to state and territory
children’s commissioners and guardians, especially if they are of national
importance. For example, the National Children’s Commissioner may wish to work
on issues such as the experience of Aboriginal and Torres Strait Islander
children living in remote parts of Australia.
However, the distinction in roles regarding the undertaking of casework
is clearer. Ms Branson noted in Senate Estimates hearings that the National
Children’s Commissioner will not undertake any casework and will have an
advocacy function, a coordination function and an identification of issues
function, broadly supporting the other work of the Australian Human Rights
Commission but with a particular focus on children.
In that sense, the Commissioner’s work will not overlap with the casework
undertaken by the state and territory commissioners.
In the Commission’s responses to questions on notice, its emphasises the
focus on collaboration where overlap in Commonwealth and state roles might
[T]here would need to be mechanisms to support communication
and collaboration. Developing partnerships with state and territory children’s
commissioners and guardians would be one of the first activities of a National
The Commission’s submission recommends that explicit reference be made
to state and territory children’s commissioners and guardians in s 46MB(5),
which lists organisations with which the National Children’s Commissioner may
The Commission also notes that some communication and collaboration
mechanisms between state and territory bodies and the Commission already exist:
[F]or example a bi-annual meeting of all children’s
commissioners and guardians which the Commission has participated in for
several years. We envisage that the National Children’s Commissioner would
continue to participate in these meetings.
The Committee considers that there is a clear role for a National
Children’s Commissioner. A national Commissioner will scrutinise legislation
and policy at a national level and will have a coordination and advocacy role,
distinct from the casework responsibilities of the state and territory bodies.
The Committee has considered the issues referred to it and has examined
the evidence submitted to the Senate inquiry. It approached the Australian
Human Rights Commission for further information in response to questions on
notice concerning the adequacy of funding and the interoperability of a
National Children’s Commissioner with the state and territory commissioners.
The Committee recognises the urgency of establishing a National
Children’s Commissioner and the vital role the Commissioner would play in
advocating for children’s rights in Australia. Accordingly, the Committee
wishes to avoid delay in the establishment of the Commissioner, although the
Committee has some concerns regarding the adequacy of ongoing funding.
The Committee recommends that the NCC Bill be passed without amendment
in the House of Representatives.
The Committee also recommends that a review of funding be carried out
before June 2013, and that an appropriate funding increase be made if required
in order to ensure the Commissioner can appropriately fulfil its functions.
||The Committee recommends that the Australian Human Rights
Commission Amendment (National Children’s Commissioner) Bill 2012 be passed
without amendment in the House of Representatives.
||The Committee recommends that the Attorney-General review
the funding allocated to the National Children’s Commissioner before June
2013 and that any necessary funding increase be made to ensure the
Commissioner can appropriately fulfil its functions.
Mr Graham Perrett MP
21 June 2012