CHAPTER 3


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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