CHAPTER 4

Main issues regarding the functions and powers of the Commonwealth Commissioner

4.1        This chapter examines the main issues raised regarding the functions and powers of the proposed Commonwealth Commissioner for Children and Young People (Commonwealth Commissioner). While the majority of submitters supported the intent of the functions and powers outlined in the Commonwealth Commissioner for Children and Young People Bill 2010 (the Bill), most submitters suggested amendments to strengthen the Bill.

4.2        Submitters requested further clarification on, and suggested various amendments to, the functions and powers provided in the Bill (primarily those provisions under clauses 9 and 10). The extension of existing functions and the addition of extra functions and powers were also suggested by some submitters.

4.3        As noted in chapter 3, the Law Council of Australia suggested that if the Commonwealth Commissioner is not established within the Australian Human Rights Commission (AHRC), then the functions under subclause 9(1) of the Bill should be 'redrafted in line with the language of the corresponding functions and powers in the AHRC Act'.[1]

Monitoring and examining legislation, policies and programs

4.4        Submitters suggested that the Commonwealth Commissioner's monitoring and examination functions, described in subclauses 3(2) and 9(1), should be more explicitly specified in the Bill, and that these functions should also extend to other areas, but should not impinge on the jurisdiction of state and territory commissioners and guardians.

4.5        Child Abuse Prevention Research Australia (CAPRA) and other submitters noted that the provision in paragraph 3(2)(b) relating to the monitoring of laws affecting children and young people is broad in scope and its application is unclear, and therefore should be revised:

It is not articulated clearly whether this 'monitoring' function is applicable to Federal or State legislation, or both. Furthermore it is ambiguous as to whether it principally applies to the 'development and application' of new laws which may affect children or whether it also serves to encompass existing legislation, including that which governs the activities of State Children’s Commissioners.[2]

4.6        Some submitters voiced concern that the role of the Commonwealth Commissioner should be to monitor implementation and should not extend to monitoring, investigating and reporting on children's rights in states and territories. Families Australia suggested it might be appropriate to clearly demarcate the responsibilities of the Commonwealth Commissioner in relation to state and territory commissioners and guardians in clause 9.[3]

4.7        The Law Council of Australia (Law Council) raised similar concerns, suggesting that the monitoring ability in clauses 3 and 9 should extend to existing and proposed enactments. The Law Council also noted that some state and territory commissioners and guardians have oversight of laws affecting children in their respective jurisdictions. Given this, the Law Council was of the view that the Commonwealth Commissioner should have a particular focus on monitoring Commonwealth laws, policies, programs and funding, and the interaction of state and territory laws with Commonwealth laws, policies, programs and funding.[4]

4.8        Submitters also suggested that the Commonwealth Commissioner should examine both existing and proposed legislation and policies to ascertain the potential impact they may have on children and young people and to ensure that the rights of children and young people are respected.[5] Youth Legal Service suggested that the Commonwealth Commissioner's priority should be an audit of the key policy areas of health, education, justice, and child care and protection.[6] Youth Legal Service further proposed that the Commonwealth Commissioner's functions should extend to monitoring and reviewing the adequacy and standards of children's services, and ensuring the accountability of both government and non-government service providers in relation to this.[7]

4.9        A large number of submitters suggested that the Bill should specifically require the Commonwealth Commissioner to monitor compliance with the United Nations (UN) Convention on the Rights of the Child (CRC).[8] Other submitters further commented that the Commonwealth Commissioner should also have responsibility for monitoring, compliance with, and the implementation of, Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD), the Optional Protocol to the CRPD and the two existing Optional Protocols to the CRC.[9]

4.10      A series of submitters suggested that the Commonwealth Commissioner should have responsibility for monitoring the National Framework for the Protection of Children, and should publicly report on progress.[10] In addition it was suggested that this monitoring role should extend to the National Quality Framework for Early Childhood Education and Care and the National Standards for Out of Home Care, to ensure that the standards are met, thereby achieving outcomes for children and young people.[11] Barnardos further commented:

Standards compliance and future development should be a core the function of the Commissioner because this function should be independent from existing bureaucracies. While some States, most noticeably New South Wales have existing mechanisms for monitoring standards, this does not occur in all jurisdictions.[12]

Coordinating functions

4.11      The coordinating functions specified in paragraphs 3(2)(c) and 9(1)(i) were seen as compromising the Commonwealth Commissioner's independence, particularly in regard to policy coordination, and it was suggested that they could create increased bureaucracy and inefficiency. Submitters proposed that such functions are more properly a role of government.[13] Rather than a coordinating role, submitters suggested that the Commonwealth Commissioner should work to encourage an integrated approach to the services provided to children and young people, across all levels of government.[14]

4.12      However other submitters supported the coordination function.[15] As the Public Interest Advocacy Centre (PIAC) stated:

A national approach could assist in coordinating research and information about best practice for laws and policies that impact on children and young people. This should assist governments and their funded services that have primary responsibility for service delivery, achieve better outcomes for the most vulnerable and disadvantaged young people in their communities.[16]

4.13      The NSW Ombudsman noted that the monitoring of trends and coordinating of strategic responses to issues affecting children and young people at a national level would actually complement the role of state and territory commissioners and guardians:

There is increasing overlap between Commonwealth and state/ territory jurisdictions, for example in relation to homelessness, housing, education and health care. Especially in those areas where equity requires a consistent national approach, a national children’s commissioner would be well placed to identify and promote best practice from across the country and internationally. Given a clear strategic focus, this role would be quite distinct from, but complimentary to, state/ territory commissioners. I recognise that state/ territory commissioners are best placed to respond to emerging issues and to ensure quality in local level service delivery.[17]

Intervening in legal cases

4.14      While further detail on the operation of this function was requested, the provision in the Bill enabling the Commonwealth Commissioner to intervene in legal cases involving the rights of children and young people was supported by various submitters.[18] The AHRC was of the view that the Commonwealth Commissioner should have responsibility for:

• assisting courts as amicus curiae by providing expert advice on human rights issues in important cases impacting on the rights of children and young people; and
• intervening in legal cases brought by individuals alleging a breach of rights set out in the CRC as well as in legal cases with implications for the enjoyment of the rights of children and young people at the systemic level.[19]

4.15      However, submitters raised concerns about the meaning of 'intervening in legal cases involving the rights of children and young people', and called for clarification. In particular, some submitters commented that this could lead to the Commonwealth Commissioner becoming overburdened with individual cases. Submitters suggested that any intervention in legal proceedings involving the rights of children and young people should not interfere with due process, should be with the leave of the court, subject to any conditions imposed by the court, and may be as amicus curiae ('friend to the court').^[20] In particular the Law Institute of Victoria (LIV) and others noted that intervention in legal cases may conflict with the responsibilities of other bodies in practice, and therefore the circumstances in which the Commonwealth Commissioner can intervene in legal cases should be circumscribed.[21]

4.16      However, despite its concerns regarding the Commonwealth Commissioner's involvement in legal cases regarding children's rights, Families Australia noted that due to the existing:

...disparity in the terms of reference and mandates of the various State and Territory Children's Commissioners or Guardians across Australia...it may be argued that the Commonwealth Commissioner should operate in this area – having a role akin to that of an Ombudsman – in order to provide national consistency of treatment of complaints made by, or on behalf of, children and young people.

It may be that an appropriate role for the Commonwealth Commissioner in this area is the provision of assistance to children and young people in taking a particular matter to the appropriate authority. If, however, the matter is of a more general nature or is not covered by State or Territory processes, a more active role for the Commissioner may be considered.[22]

4.17      Mission Australia also noted that this could be a beneficial role for the Commonwealth Commissioner to undertake, as 'this will be particularly important where gaps between State and Commonwealth law may result in the exacerbation of some children and young people’s vulnerability'.[23]

Promotion and public education

4.18      It was suggested that the Commonwealth Commissioner's functions be expanded to include public education about the rights of children. Submitters also called for the function in relation to education and promotion to be extended beyond early childhood development.[24] Early Childhood Australia (ECA) and others commented that only the Government can 'ensure' strong investment in early childhood development, therefore the Commonwealth Commissioner can advocate for such investment, but cannot ensure it.[25]

4.19      The National Association for Prevention of Child Abuse and Neglect (NAPCAN), recommended that the Commonwealth Commissioner should also have a function to educate the public about how to prevent child abuse and neglect, through a public awareness campaign.[26] The Aboriginal and Torres Strait Islander Legal Service (ATSILS) suggested that the Commission would need to promote its existence and its work appropriately.[27]

4.20      Submitters further suggested that the Commonwealth Commissioner should promote the CRC in Australia 'as a means of improving the status of children and young people via increased understanding of the rights and needs of children and young people'.[28] In this vein, the Law Council suggested that paragraph 9(1)(b) should refer to the UN CRC, CRPD, the relevant Optional Protocols and other relevant international instruments.[29]

Engaging children and young people and wider consultation

4.21      The functions and requirements of the Commonwealth Commissioner to consult with children and young people and to proactively involve them in decisions which affect them were widely supported by submitters. However, it was suggested that the Bill should require that the Commonwealth Commissioner develop a tangible model, or structures and consultation mechanisms which will facilitate communication and enable children and young people to actively participate in decision making.[30]

4.22      For example, submitters suggested employing the internet and social media as methods for engaging children and young people and promoting awareness of children's rights, noting success with the use of these mediums by commissioners overseas.[31]

4.23      The Child and Welfare Agencies Association (CAFWAA) suggested that one way of ensuring that consultation with children and young people is representative and informed may be through establishing an advisory committee, or thorough engaging with bodies used by the state and territory commissioners.[32] The Mallesons Stephen Jaques Human Rights Law Group noted that some overseas jurisdictions have implemented advisory committees.[33]

4.24      This approach was supported by the Law Council which noted that the establishment of advisory committees is provided for in other state and territory legislation:

Such committees appear to be a mechanism for the consultation with parents, guardians and educators referred to in sub-clauses 10(d) and (e). Such committees appear to operate very effectively and the Law Council recommends that the Committee consider whether the Bill should be amended to provide for consultative committees.[34]

4.25      Submitters called for an expansion of the bodies specified in the legislation to be consulted. It was argued that this list should include: non-government community service organisations; carers; academics; researchers and research bodies; doctors; paediatric and young people health services; as well as experts on child rights, advocates, Indigenous issues and disability issues and other peak/representative groups and relevant parties.[35] National Disability Services (NDS) explained that such bodies 'play an important role in the promotion of the safety and wellbeing of Australia’s children and young people through research and analysis, advocacy, policy and service delivery roles'.[36] The Law Council suggested the restrictive nature of the provision may be addressed by forming advisory committees constituted by members with a broad range of relevant skills and experience.[37]

4.26      One submitter commented that it is unclear why the Bill specifies consultation with educators, and state and territory commissioners and guardians. Save the Children Australia suggested that the Commonwealth Commissioner should only consult educators on matters relating to education.[38]

4.27      Concerns were also raised that children and young people did not appear to have been directly consulted on the Bill itself.[39]

4.28      ATSILS commented that 'the Commission must be culturally appropriate and culturally competent'.[40] This was supported by the HRLRC which suggested that the Commonwealth Commissioner should conduct duties in a manner that is 'attentive and sensitive to children and young people's ethnic and cultural identities'.[41] As Mission Australia explained:

...special attention must be paid to the assertion of these children and young people’s cultural rights, as a strong sense of attachment to a cultural community is a key focus of the UNCRC and a known protective factor that supports the development of self-esteem and positive social norms and behaviours, and promotes wellbeing. [42]

4.29      People with Disability Australia and the Julia Farr Association noted the importance of ensuring that children and young people living with disability are effectively consulted and involved in decision making. As the ability of children and young people to understand and convey information can vary widely, due to 'cognitive or communication issues, there needs to be consideration of the provision of responsive supports to assist children to make decisions and express their views'. As a result, it was recommended that paragraph 10(a) of the Bill be amended to read 'consult with children and young people in all their diversity in ways appropriate to their age, maturity and participation needs'.[43]

4.30      The Refugee Council of Australia recommended that a 'youth participation' approach be taken to ensure the Commonwealth Commissioner can engage fully with all children. This would involve 'practices which maximise the inclusion of children and young people from a refugee, asylum seeker and humanitarian background'.[44]

4.31      The AHRC further suggested that the Commonwealth Commissioner could have the ability to speak on behalf of children and young people 'if there were insufficient mechanisms for children to represent their own interests at the national level'.[45] Another submitter went further, suggesting that the Bill should clearly state that the Commonwealth Commissioner is required to listen to and represent the views of children and young people.[46]

A focus on vulnerable children and young people

4.32      A number of submitters commented that the Bill should provide that in performing their functions the Commonwealth Commissioner is to have a specific focus on those children and young people who are especially vulnerable. In particular, submitters suggested that special attention should be afforded to Aboriginal and Torres Strait Islander children and young people and children and young people in immigration detention, those in the criminal justice system, those in out-of-home care, and children and young people living with a disability.[47]

4.33      Mr Julian Pocock, of Berry Street, commented:

...something we picked up from the bill—and we are not quite sure that it was intended—is that there seems to be a lack of focus on the hard end of social policy and on the particular groups of children and young people who most need a commissioner for children and young people looking out for them.[48]

4.34      Families Australia recommended that an additional provision be added under clause 9 pertaining to the functions of the Commonwealth Commissioner, stating that 'the Commissioner will pay particular regard to the rights, needs and interests of vulnerable children and young people'.[49]

4.35      While Catholic Social Services Australia (CSSA) supported the Commonwealth Commissioner having a focus on vulnerable children and young people, it noted concern that specifying particular groups of vulnerable children could lead to the exclusion of other groups of children.[50] This issue was elaborated on by Ms Catherine Branson, President and Human Rights Commissioner, AHRC, who observed that specifically identifying various groups of vulnerable children in the legislation might be useful, as long as this did not work to the exclusion of other children and young people:

...we think it would be valuable to articulate in the bill particular groups of children in Australia who have a particular need for a commissioner who can listen to them and advocate on their behalf. However, it would be important that nothing were done that limited the capacity of the commissioner to respond to new and developing situations affecting children in Australia. And it is very critical for us to remember that it is all children in Australia, not just those from particular vulnerable groups, who have the right to be heard and are entitled to be treated with respect and who, for that reason, would benefit from the appointment of a commissioner for children and young people.[51]

Aboriginal and Torres Strait Islander children and young people

4.36      Submitters noted that Aboriginal and Torres Strait Islander children and young people are overrepresented in juvenile detention centres and the justice system generally. For example, Families Australia commented that 'Aboriginal and Torres Strait Islander children are far more likely to be disadvantaged than non-Aboriginal and Torres Strait Islander children across a broad range of health and socio-economic indicators', and are significantly overrepresented in the child protection system.[52]

4.37      In light of this, submitters argued that the Commonwealth Commissioner should give priority and have special regard to the interests of Aboriginal and Torres Strait Islander children and young people, for example through monitoring the Aboriginal Child Placement Principle. The Aboriginal Legal Service of Western Australia (ALSWA) suggested this could be achieved through a provision similar to section 20 of the Commissioner for Children and Young People Act 2006 (WA).[53]

4.38      Several submissions suggested the appointment of a dedicated Commissioner or at least a Deputy Commissioner for Aboriginal or Torres Strait Islander children and young people. It was suggested that this would assist in meeting the targets identified in the 2010 Closing the Gap report.[54] Mr Frank Hytten, Chief Executive Officer of the Secretariat of National Aboriginal and Islander Child Care (SNAICC), explained:

...the scope and complexity of issues and policies affecting Aboriginal and Torres Strait Islander children requires a dedicated position with an exclusive focus. As recognized by the Council of Australian Governments’ Closing the Gap Agenda, overcoming the intergenerational disadvantage facing many of our children and families requires a sustained commitment to effective reforms and resources in key areas. These key areas incorporate measures with a specific focus on children’s issues, all of which require ongoing monitoring and evaluation. The Agenda is also premised on acknowledgement of the importance of our culture and engagement with our children, families and communities. To meet this national commitment, a dedicated position is required.[55]

4.39      ATSILS further argued that the Commission should be staffed with appropriate numbers and levels of Aboriginal and Torres Strait Islander staff.[56]

Children and young people living with disability

4.40      The committee also received evidence that due to the particular vulnerability of children and young people with disability, specific recognition of this group is necessary in the Bill. In the view of NDS, for children and young people with disability:

...many mainstream services (such as early childhood services, education and training) fall well short of what could be considered adequate (often through insufficient funding, limited access to teachers and support staff trained in disability, and poor access to facilities and assistive technology).[57]

4.41      Novita Children's Services submitted that specific reference should be made to children and young people with disability in the functions of the Commonwealth Commissioner specified in the Bill, stating '[t]his is critical in the context of requiring domestic legislation to reflect and implement international commitments and obligations made by the Australian Government under UNCRC and UNCRPD'.[58] This was supported by Dr Ken Baker, Chief Executive of NDS, who also called for children with disability to be specifically recognised in the Bill:

...there is a particular vulnerability that children with disability have and there is evidence that rates of abuse among children with disability are higher than in the general population. Because children with disability often require specialist support, they are, I think, a particularly vulnerable group.[59]

4.42      Families Australia and others suggested that the Commonwealth Commissioner should advocate for minimum standards for quality of life which must be met for those children and young people living with disability.[60]

Children and young people in the criminal justice system

4.43      Mission Australia was particularly concerned to ensure that the needs, rights and interests of children and young people in the criminal justice system are not overlooked:

Further, in view of recent commentary which suggests there has been a discernible a rise in more punitive youth justice policies at the expense of more rehabilitative approaches, we believe that monitoring this area, bringing pressure to bear on sentencing and other related policy, and educating the community regarding the necessity of a rehabilitative approach ought to be an urgent priority for the new Commonwealth Commissioner.[61]

4.44      PIAC further noted that a national coordination and monitoring function would be beneficial for those subject to the criminal justice system, as:

...the existence of separate juvenile justice systems in each jurisdiction results in children detained for different reasons, in different conditions and for differing lengths of time and often with poor access to quality diversion programs or support when exiting detention...For example, the variations between the jurisdictions in the treatment of juveniles is evident when comparing the rate of detention in Victoria and the Northern Territory: for every 1000 young people (aged between 10 and 17) in the Northern Territory, 1.3 are in detention; compared with 0.1 for Victoria. Young people sentenced in the Victorian justice system are 23 times more likely to receive a community-based order than detention. In contrast, young people in the Northern Territory are twice as likely to be remanded in custody and receive a custodial sentence than receive a community-based order. National leadership could put all jurisdictions on a path to best practice, improving outcomes for young people by giving evidence-based guidance and setting benchmarks that would reduce such wide discrepancies.[62]

Children and young people in immigration detention

4.45      A number of submitters raised concerns that current processes do not afford adequate care and protection to children and young people in immigration detention. It was noted that a Commonwealth Commissioner should afford particular focus to these children and young people as they fall under Commonwealth jurisdiction. In particular, submitters raised concerns that the current treatment of children and young people in immigration detention breaches Australia's international obligations regarding human rights.[63]

4.46      ChilOut – Children Out of Immigration Detention (ChilOut), noted that a Commonwealth Commissioner is needed for those children and young people who fall under Commonwealth jurisdiction:

Currently, there is no agency or commission with the responsibility to protect and advocate for the rights of children being held under Commonwealth jurisdiction, specifically children held in immigration detention centres. As there are no Commonwealth child protection laws, this results in children in immigration detention being denied the basic protections of state child abuse laws, or even codified minimum standards of conditions for their detention.[64]

4.47      The Department of Immigration and Citizenship (DIAC) informed the committee that external oversight in relation to immigration detention is currently carried out by the Commonwealth and Immigration Ombudsman, the AHRC and the UN High Commissioner for Human Rights. DIAC submitted:

While DIAC certainly supports the maintenance of strong external accountability mechanisms, DIAC queries the value of an additional layer of oversight in this area, which is likely to duplicate the role already performed by the Ombudsman and the Australian Human Rights Commission.[65]

4.48      Mr David Manne, appearing on behalf of ChilOut, took issue with DIAC's view that no extra layer of oversight is necessary:

There is no body in Australia that has the role of reviewing individual cases of minors in detention and reporting publicly unless the detention has gone beyond two years.

...the Ombudsman does not have that role. The Ombudsman has the role of reviewing detention at six month periods. What I am saying is that there is no body that is required to review individual cases and then report publicly unless the detention is two years or more. The idea that somehow that is adequate and that we do not need further oversight beggars belief.[66]

4.49      Dr Wendy Southern, Deputy Secretary of DIAC, responded to these concerns, stating that while there is no legal requirement for DIAC or the minister to act on the recommendations of the Ombudsman's reports, the six-monthly review and the review after two years are not the only reviews which take place:

The review that occurs after a child or any other detainee has been in detention for six months is a report from us to the Ombudsman. In the period before that we have processes which involve the individual case management of all clients...Internally and there is a high level of scrutiny within the department of how the cases are being managed. Yes, the external scrutiny takes place at six months for a formal report but as I said the Ombudsman has the capacity at any time to visit detention centres—those visits happen regularly—and to report on own motion inquiries, so the capacity is there for the Ombudsman to do that at any time.[67]

4.50      Ms Branson explained to the committee that the AHRC cannot provide the dedicated focus on children and young people that a Commonwealth Commissioner could:

Both the Australian Human Rights Commission and the Ombudsman have legitimate concerns about the rights of children generally and in immigration detention. At the commission we can entertain complaints from children who are held in immigration detention but we do not believe that what we are able to do, with the resources we have, is adequate for all of the things that we feel can be done by a specialist and appropriately resourced Commonwealth commissioner for children and young people in this area...without a commissioner with a special focus solely on children and with resources that are dedicated to that purpose, the range of activities which I have outlined in my opening statement and set out in our submission cannot be done to the extent that I think children in Australia deserve to have them done.[68]

4.51      Further in relation to DIAC's submission that additional oversight is not necessary, Ms Kate Gauthier, Chair of ChilOut, queried whether DIAC's advisory panels have any child welfare experts participating.[69]

4.52      Some submitters also argued that the powers and functions of the Commonwealth Commissioner should extend to children and young people held in off-shore processing centres, 'who are, or whose families are, seeking asylum in Australia and where Australia can exercise rights and influence by virtue, for example, of the provision of funding'.[70]

4.53      Submitters recommended that the legislation should actively uphold the rights of children and young people to not be held in detention, and that paragraph 9(1)(d) include a reference to the right of children and young people to not be separated from their families.[71]

4.54      Several submitters emphasised that the Commonwealth Commissioner's functions and powers should extend to '"all children in Australia" regardless of their citizenship or residency status' and therefore suggested that paragraph 9(1)(a), referring to 'Australian children and young people' be amended to apply to all children in Australia, or 'towards whom Australia has international obligations' regardless of citizenship.[72] Further, the Law Council suggested that paragraph 9(1)(d) be broadened to include all asylum seekers not just those in detention.[73]

4.55      In a similar vein, Berry Street suggested that the legislation should use the term 'refugee' so as not to limit the purview of the Commonwealth Commissioner to children and young people who arrive unaccompanied, who are being held in detention or whose parents are being held in detention. Berry Street stated:

Australia has obligations, both legal and moral, to these children and young people regardless of where they are held or live after their arrival. Refugee children and young people placed in community based settings should fall within the areas of concerns for the Commissioner.[74]

Guardianship of unaccompanied minors

4.56      The provision in the Bill for the Commonwealth Commissioner to act as the legal guardian of unaccompanied children and young people who arrive in Australia without authority or the requisite visa, in appropriate cases, elicited a great deal of comment. While many submitters held concerns with the current guardianship arrangements, the appropriateness of the Commissioner taking on guardianship responsibilities was debated.

4.57      DIAC explained to the committee that currently, the Immigration (Guardianship of Children) Act 1946 (IGOC Act), provides that the Minister for Immigration and Citizenship will be the legal guardian of 'unaccompanied non-citizen minors who arrive in Australia with the intention of becoming permanent residents'. Under the IGOC Act, the guardian may 'appoint a custodian to provide for the day-to-day care of a minor'. This allows the minister to delegate guardianship responsibilities to officers within state and territory welfare agencies and to certain DIAC officers.[75]

4.58      In its submission, FamilyVoice Australia identified a conflict between the Bill and section 6 of the IGOC Act. The Bill provides that in appropriate cases, the Commonwealth Commissioner will act as the legal guardian of such unaccompanied minors, while under the IGOC Act, the minister has this responsibility. FamilyVoice Australia notes that the Bill makes no provision to amend the IGOC Act to specify that the minister will not be the legal guardian of such children in cases in which it is deemed appropriate that the Commonwealth Commissioner act as the legal guardian.[76]

4.59      DIAC also noted concern that the Bill does not mention how it will interact with the IGOC Act, and therefore 'appears to set up a dual guardianship regime'.[77]

4.60      CSSA argued that the existing guardianship legislation should be upheld, and did not support the Commonwealth Commissioner having a guardianship role.[78] However, several submitters commented that the current arrangements under which the Minister for Immigration and Citizenship is the guardian of unaccompanied minors, and also has functions in relation to determining the granting of visas, constitutes a conflict of interest, and should be reviewed.[79] The AHRC outlined the reasons for its concerns as follows:

The Commission has for many years raised concerns about these arrangements. In the Commission’s view, they create a fundamental conflict of interest. It is not possible for the Minister or a DIAC officer to ensure that the best interests of an unaccompanied minor are their primary consideration when they are simultaneously the child’s legal guardian, the detaining authority and the visa decision-maker.[80]

4.61      DIAC submitted that it is aware of the potential perception of a conflict of interest under the current arrangements. Consequently, 'DIAC has been exploring alternative ways in which the IGOC Act could better meet the objective of providing for the care and welfare of unaccompanied minors'.[81]

4.62      The Office of the United Nations High Commissioner for Refugees (UNHCR) noted that under UNHCR's Procedural Standards for Refugee Status Determination, The Handbook on Procedures and Criteria for Determining Refugee Status, and article 3 of the CRC, any decision taken should be in the best interests of the child. The UNHCR noted its concern that the 'same authority which is detaining, determining refugee status and deporting is the same authority which is meant to be representing the child’s best interests'. Consequently, the UNHCR was of the view that:

...the Government of Australia should review guardianship arrangements for unaccompanied minors to ensure their interests are fully considered and no actual or potential conflict of interest arises. One possibility would be to appoint an independent Commissioner along the lines proposed in the Commonwealth Commissioner for Children and Young People Bill 2010.[82]

4.63      However, other submitters supported the Commonwealth Commissioner acting as the legal guardian for such unaccompanied minors.[83] CAPRA suggested that guidance on what would constitute an 'appropriate case' for the Commonwealth Commissioner to act as the legal guardian of unaccompanied minors would be beneficial. Further, CAPRA noted that it may be worthwhile to specify that:

...in acting in such a capacity, the Commissioner must undertake any such statutory duties independently and with regard to advocating for and protecting the rights, welfare and interests of the child.[84]

4.64      Although the current arrangements were not satisfactory to a large number of submitters, some submitters did not support the Commonwealth Commissioner becoming the guardian of unaccompanied minors as this too may present a potential conflict of interest, and could overburden the Commissioner.[85] Rather, it was suggested that the Commonwealth Commissioner should:

...have oversight of the quality of care provided to children and young people by the relevant authorities who currently provide that function, to ensure that their rights are observed and respected in decisions made on their behalf.[86]

4.65      Other submitters suggested an alternative for the legal guardianship of unaccompanied minors should be considered.[87] Referencing Recommendation 3 of the AHRC's report A Last Resort?, ChilOut suggested that a possible alternative could be to move guardianship responsibilities to the Minister for Families, Housing, Community Services and Indigenous Affairs:

Guardianship of unaccompanied minors should not rest with an independent Commissioner for Children and Young People. Rather it should be transferred from the Minister for Immigration to a Minister for Children and Young People, ideally, but in the absence of such a position, the Minister for Families, Housing, Community Services and Indigenous Affairs. The Minister would then engage FaHCSIA in the care of unaccompanied children. Direct responsibility would then be delegated to members of a panel of advisers funded by FaHCSIA, but staffed by a community organisation.[88]

4.66      Ms Rosemary Budavari, representing the Law Council of Australia, noted a difficulty with this solution, as:

...the Minister for Families, Housing, Community Services and Indigenous Affairs has an enormous portfolio already, although it could be said that some of the work of that department would be quite relevant to the care of children. For state and territory ministers with responsibility for child protection, the difficulty is that those ministers and departments are quite well known as being overwhelmed with the amount of child protection work that there already is at the state and territory level. They would need to be further resourced to provide a role in relation to unaccompanied minors.[89]

4.67      Ms Gauthier, representing ChilOut explained that the Commonwealth Commissioner could only effectively review and oversight the minister as guardian if they were endowed with enforceable powers under the legislation, stating, 'It would be great if the children’s commissioner had enforceable powers. But, if they do not, we do not think it will go far enough to protect children'.[90]

4.68      Further, Mr Manne noted that ministerial guardianship of unaccompanied minors is still problematic, regardless of the portfolio of the minister:

Our position on this is that no minister should be responsible, that the fundamental problem that we continue to confront is the one that you have alluded to; that any minister of government—sitting in cabinet or otherwise, whether it be the FaHCSIA minister or a special new ministerial portfolio—is not sufficiently independent from the whole of government and government policy.[91]

4.69      Mr Pocock of Berry Street, suggested that a Commonwealth guardian for children and young people should be created as a separate role:

If there is a need for there to be a guardian in particular for unaccompanied minors and refugee children and young people then our view would be that the Commonwealth should establish such a guardian for those children and young people and not have that function absorbed within the functions of a commissioner who is supposed to be independently monitoring the performance of the Australian government and other governments in relation to securing the rights of children and young people.[92]

4.70      DIAC also queried the capacity of the Commonwealth Commissioner to provide the care required of a guardian for the volume of minors that the minister is currently responsible for, especially as the Bill does not provide for the delegation of guardianship.[93] The AHRC suggested that if the Commonwealth Commissioner is to become the legal guardian of unaccompanied minors in immigration detention, the Commission must be sufficiently resourced, and have staff with adequate expertise to ensure that the role is carried out effectively. Further any delegation of guardianship responsibilities should be to 'appropriately qualified individuals who reside in close proximity to places of detention'.[94]

4.71      Australian Children's Commissioners and Guardians (ACCG) expressed the view that guardianship requires 'specialist and technical knowledge' and should be arranged through agreements with state governments.[95] Ms Elizabeth Fraser, representing ACCG elucidated further at the hearing:

It is a very different area, you have obviously got different cultural backgrounds that you are dealing with, so I think there would have to be quite a bit of thinking about how you were going to appropriately move into that space and advocate or connect with young people. A lot of what commissioners do is try to bring forth the point of view of young people and children and what the impacts are on them, as opposed to broadly advocating for the service environments.[96]

4.72      This was supported by the AHRC, as Ms Branson explained:

We do not have a position on exactly who should take on this responsibility, but it is imperative that it be a person with specific expertise who is located, as I have said, as close as practicable to the facilities in which the child is detained. Consideration should be given, we suggest, to entering into arrangements with state and territory child protection agencies and the organisations who undertake guardianship responsibilities on their behalf.[97]

4.73      One submitter noted that improving the response to unaccompanied minors is a complex task, and is not resolved by simply transferring guardianship of the minors:

It has implications for the development and funding of suitable services, negotiating with relevant state and territory departments regarding their role, accessing and funding legal services, interacting with the Australian Federal Police, complaints handling, access to income support to identify a few.

This complexity suggests that unaccompanied minor children would be better served if the Commissioner’s role was to assist the various government agencies develop an improved systemic response to unaccompanied minors, rather than provide individual case management that other agencies are more suited to providing.[98]

Reporting and recommendations

4.74      While subparagraph 9(1)(c)(iii) provides that the Commonwealth Commissioner can undertake inquiries and report to Parliament, a series of submitters called for the Commissioner's reporting abilities to be extended, and that related powers should be afforded to the position. Submitters argued that the Commonwealth Commissioner should be provided the ability to initiate reviews, inquiries or research, possibly through an own motion power, and determine its own priorities. In addition, submitters called for the Commonwealth Commissioner to be afforded adequate powers to obtain information, make recommendations and expect responses from government. In particular it was suggested that the Commonwealth Commissioner should have the capacity to examine and make recommendations on 'issues of systemic concern', and this should be explicitly reflected in the Bill.[99]

4.75      While submitters supported the power provided in the Bill for the Commonwealth Commissioner to review laws and policies affecting children and young people, it was argued that the Bill should specifically provide that the Commonwealth Commissioner can make suggestions and recommendations to relevant ministers on potential policy or legislation.[100]

4.76      ATSILS suggested that recommendations and feedback from the Commonwealth Commissioner should be a standing agenda item at meetings of the Standing Committee of Attorneys General.[101]

4.77      The Law Society of New South Wales noted particular concern that as currently drafted, the Bill may not adequately empower the Commonwealth Commissioner to perform its duties and functions. It was therefore submitted that the Commonwealth Commissioner should be able to initiate proceedings on their own accord, and compulsorily require the production of information from individuals, agencies and other bodies.[102] If this is to be implemented the Law Council urged the 'consideration of necessary protections for persons or bodies subject to the exercise of the powers'.[103]

Research

4.78      Submitters also called for further detail of the Commonwealth Commissioner's role in relation to research, as currently, the Bill simply provides that the Commissioner is to conduct research. Various submitters suggested that a key function of the office should be to facilitate research to promote best practice. Play Environment Consulting expressed concern that the Bill does not identify 'how the commissioner would be expected to access research – or even to promote research into gap areas – in order to bring children’s wellbeing into line with international and national findings'.[104]

4.79      In light of this the Law Council suggested that the functions of the Commonwealth Commissioner include that ability to:

...undertake research and other programs on behalf of the Commonwealth, for the purpose of promoting the rights of children and young people, and to co-ordinate any such programs undertaken by any other persons, or authorities on behalf of the Commonwealth...[105]

4.80      It was also submitted that the Commonwealth Commissioner should not undertake research themselves, but rather:

...should collate and use existing research across a broad range of disciplines, identify areas for further research relating to children and young people, and ensure that data collection mechanisms are adequate and appropriate. The Commissioner should be involved in advocating for greater investment in research and monitoring (indicator) data on children and young people.[106]

Receiving complaints

4.81      While no such function is currently included in the Bill, some submitters suggested that the Commonwealth Commissioner should be able to receive, investigate and act on complaints about breaches of children's rights. Submitters noted that while currently the AHRC can receive such complaints, its mandate in this regard is limited, and a complaints process under the Commonwealth Commissioner could be specifically designed for, and in consultation with, children and young people.[107]

4.82      The Salvation Army commented that the UN Committee on the Rights of the Child has specified a series of functions that an 'independent national human rights institution involved in the promotion and protection of the rights of the child' should have, and one of those functions is to 'receive complaints of breaches of children's rights'. In light of this, it was suggested that even if the Commonwealth Commissioner does not have jurisdiction to respond to a complaint, the Commissioner:

...should play a part to ensure other adequate responses are available to challenge individual violations of children’s rights. This includes, reviewing children’s access to and effectiveness of the courts and other existing localised complaint mechanisms.[108]

4.83      NAPCAN supported this view, stating that the Commonwealth Commissioner should have 'the ability to review children’s access to, and the effectiveness of, all forms of advocacy and complaints systems'.[109]

4.84      However, other submitters argued that the Commonwealth Commissioner should not deal with individual complaints, due to concerns that focussing on individual cases will overburden the Commonwealth Commissioner and constrain their ability to advocate for systemic change in policy, legislation and programs. It was suggested by some submitters that complaints should continue to be received by the AHRC, state and territory commissioners and guardians, or Ombudsman rather than the Commonwealth Commissioner.[110]

4.85      The AHRC explained the current complaints system for children and young people as follows, and recommended that the AHRC continue to manage complaints regarding children's rights:

In Australia, children and young people can already make a complaint about some human rights breaches. For example, children can make a complaint to the Australian Human Rights Commission if they feel they have been discriminated against on the grounds of age, race, sex or disability. The Australian Human Rights Commission has a more limited mandate to investigate complaints where an action by the Commonwealth is alleged to have breached or infringed a right contained in the CRC.[111]

4.86      People with Disability Australia suggested that the Commonwealth Commissioner, established as part of the AHRC, should be able to receive and investigate complaints, therefore the AHRC should retain its current role of receiving complaints under the UN CRC.[112]

4.87      The Law Council also supported the AHRC retaining the responsibility for receiving individual complaints even if the Commonwealth Commissioner is not established within the AHRC, despite the limitations on its process, suggesting that 'it may be preferable for the limitations of the AHRC complaints handling process to be addressed rather than establishing a separate complaints handling process for the Commissioner'.[113]

Other suggested functions

4.88      The Australian Association of Social Workers recommended that the Commonwealth Commissioner should also have the ability to examine the adequacy of and make recommendations regarding 'the workforce that support children and young people, its skills and qualifications in Commonwealth, State and Territory services'.[114]

4.89      The National Council of Single Mothers and their Children argued that the Commonwealth Commissioner must also have a role in examining the adequacy of income support for children, as '[p]overty in early childhood has been identified as the single most important contributing factor to adverse outcomes for children'.[115]

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