CHAPTER 5


CHAPTER 5

Committee view and recommendations

The need for a commissioner for children and young people

5.1        The committee acknowledges the strong arguments put forward supporting the establishment of a Commonwealth Commissioner for Children and Young People (Commonwealth Commissioner). However, the evidence received by the committee pointed to a range of concerns with the provisions of the Commonwealth Commissioner for Children and Young People Bill 2010 (the Bill). The committee also notes that the Australian Government is currently considering the role of a National Children's Commissioner under the National Framework for Protecting Australia's Children.

5.2        The committee is of the view that, given the concerns raised in relation to the Bill, the establishment of a Commonwealth Commissioner should be further considered. The committee therefore considers that the Bill should not be passed. However, the committee believes that the matters raised during the inquiry should be given full consideration in the Government's deliberations on the role of a National Children's Commissioner.

Model and structure

5.3        During the inquiry, the committee received evidence on the various models proposed for the Commonwealth Commissioner, and considers that there are advantages in adopting a broad approach. In particular, the committee sees benefit in the focus on early intervention and prevention under a public health model.

5.4        The committee acknowledges the advantages and disadvantages identified by submitters regarding the possible establishment of the Commonwealth Commissioner for Children and Young People within the Australian Human Rights Commission (AHRC). While the committee notes that a Commonwealth Commissioner could be adequately accommodated in the AHRC, if this approach is taken, care will be needed to ensure that the independence and the functions and powers of the proposed Commissioner will not be affected. In addition, the AHRC will require adequate resourcing to accommodate this extra role.

Definition of children and young people

5.5        The Bill defines the term 'child' when used in relation to the United Nations (UN) Convention on the Rights of the Child (CRC), as 'a person below the age of 18 years',[1] and is consistent with the definition in the UN CRC. However, the UN more generally defines a child as a person under the age of 15 and youth as people between the ages of 15 and 24. Submitters raised concerns about the need for support of those people transitioning to independence between the ages of 18 to 25, particularly those leaving out-of-home care. In light of these matters, submitters generally agreed that the Commonwealth Commissioner's powers and functions should be extended to encompass people 25 years of age or younger. The committee also notes that the definition of 'child' and 'young person' varies in legislation across all jurisdictions.

5.6        The committee considers that careful consideration should be given to the definition of 'child' and 'young people' in any legislation to establish a Commonwealth Commissioner. In addition, the committee considers that significant implications arise from the inconsistent definitions used by jurisdictions and that any Commonwealth Commissioner should work with the states and territories to establish an agreed definition.

Interaction with state and territory commissioners and guardians

5.7        The possible duplication of functions between a Commonwealth Commissioner and the state and territory commissioners and guardians was raised by a number of submitters. Other submitters did not support this view and argued that there is a role for a Commonwealth Commissioner to provide oversight of policy areas within the Commonwealth's jurisdiction, and monitor rights and wellbeing issues regarding children and young people at a national and international level. It was also noted that the responsibilities and functions of state and territory commissioners and guardians varied, and that a Commonwealth Commissioner could play a valuable role in providing oversight of areas in which state and federal systems either leave gaps or overlap, and in advocating for all states and territories to operate at the same best practice level.

5.8        The committee considers that any proposed Commonwealth Commissioner must complement the roles and functions of the state and territory commissioners and guardians. A cooperative and collaborative arrangement will ensure that matters related to children and young people, particularly vulnerable children and young people, are addressed in a comprehensive way. In order to facilitate this approach, the committee agrees that the scope of any proposed Commonwealth Commissioner's role, powers and functions must be clearly drafted in any enabling legislation, and that the delineation between the responsibilities of the state and territory commissioners and guardians and those of the Commonwealth Commissioner must be unambiguous.

Independence and reporting requirements

5.9        The committee notes calls for the Commonwealth Commissioner to be adequately resourced, and that the resourcing and appointment of the Commonwealth Commissioner should not be unduly dependent on the minister or the Government, to ensure the independence of the office. The committee believes that such matters should be taken into consideration in the establishment of any National Children's Commissioner.

5.10      In relation to reporting requirements, submitters argued that the Commonwealth Commissioner should report directly to Parliament rather than reporting to the minister and the minister then tabling the report in the Parliament as proposed by the Bill. The committee notes that the AHRC reports to the Parliament through the minister.

5.11      Another matter of significant concern was the proposal contained in the Bill that the Commonwealth Commissioner produce Australia's report to the UN Committee on the Rights of the Child. This was seen as potentially compromising the Commonwealth Commissioner's independence and as an alternative approach it was suggested that the Commonwealth Commissioner could review the report produced by the Australian Government and either provide comment, or publicly report on the Australian Government's report, or provide an alternative, publicly available report to the UN Committee on the Rights of the Child if required.

5.12      The committee acknowledges suggestions from submitters that the statutory review period be extended to allow for a review which will encompass a complete cycle of the Commonwealth Commissioner's functions, including a report to the UN Committee on the Rights of the Child.

Functions and powers

5.13      The committee acknowledges the breadth of evidence received calling for clearer and more concise provisions concerning the role, functions and powers of a Commonwealth Commissioner and that any Commonwealth Commissioner should be provided with adequate powers to effectively undertake their functions. In particular, it was argued that a Commonwealth Commissioner would perform their functions more effectively if they were granted the ability to initiate reviews, inquiries and research, and were empowered to make recommendations and require the production of information from individuals, agencies and other bodies.

5.14      The committee notes the suggestion of the Law Council of Australia that many of the concerns raised regarding the role, powers and functions of the Commonwealth Commissioner could be addressed if the proposed functions were drafted in line with those which apply to the AHRC.

5.15      A matter raised by many submitters was the guardianship of unaccompanied non-citizen minors. Currently, the Minister for Immigration and Citizenship acts as the legal guardian of unaccompanied non-citizen minors who arrive in Australia with the intention of becoming permanent residents.

5.16      The minister's role as the legal guardian of unaccompanied minors, and how this interacts with the minister's responsibilities in determining the granting of visas was canvassed in evidence. However, as discussed in chapter 4, the committee notes that the Department of Immigration and Citizenship is looking at alternatives for the legal guardianship of unaccompanied minors. One of the alternatives, as outlined in the Bill and supported by some submitters, was that this function be undertaken by the Commonwealth Commissioner. However, not all submitters supported this approach as it was argued that this may create a conflict of interest, and that a more appropriate role for the Commonwealth Commissioner is to provide oversight of the entity acting as the legal guardian of such minors.

5.17      In order to overcome concerns with such a conflict of interest, submitters suggested either the creation a separate Commonwealth guardian, for children and young people who do not fall within the jurisdiction of state and territory guardians, or that the Commonwealth arrange legal guardianship through the state and territory systems. The committee is of the view that a Commonwealth Commissioner should not act as the legal guardian of unaccompanied minors – rather any proposed Commonwealth Commissioner should have oversight of the entity acting as guardian, to ensure the rights and wellbeing of children and young people are upheld.

5.18      The committee recognises that the AHRC currently manages complaints regarding breaches of children's human rights. Some submitters commented that the Commonwealth Commissioner should be empowered to receive complaints. However, the committee notes concerns raised that requiring a Commonwealth Commissioner to manage the complaints process will overburden any such office. The committee further notes that the UN Committee on the Rights of the Child requires that the national human rights institution responsible for the protection of the rights of children should receive complaints regarding the breach of the rights of a child. The committee also acknowledges the Law Council of Australia's suggestion of addressing the limitations of the AHRC's complaints handling process, and empowering the Commonwealth Commissioner to review the adequacy of, and access to, such complaint mechanisms. In the committee's view, any proposed Commonwealth Commissioner should be adequately resourced to receive and investigate complaints regarding the breach of the rights of children and young people.

5.19      The committee received suggestions for the expansion, clarification, refinement, and addition of various functions and powers of the Commonwealth Commissioner as proposed in the Bill, summarised below. In view of the evidence received, the committee suggests that in considering whether to establish a National Children's Commissioner, the Australian Government should give consideration to the merits of providing any such Commissioner with the following functions and powers:

  • monitoring and examining Commonwealth laws, policies, programs and funding, and their interaction with state and territory laws, policies, programs and funding;
  • monitoring compliance with the UN CRC;
  • monitoring the implementation of, and progress against, the National Framework for the Protection of Children;
  • coordinating an integrated and nationally consistent approach to issues affecting children and young people;
  • coordinating and facilitating research, and identifying areas for, and promoting further, research;
  • promoting and undertaking public education programs about: the rights of children, childhood development, protecting the rights and wellbeing of children, and the UN CRC;
  • developing a model/mechanism to facilitate the engagement of children and young people in consultation processes and decision-making;
  • intervening in legal proceedings involving the rights of children and young people, but only with the leave of the court hearing the proceedings, and subject to any conditions imposed by that court;
  • a focus on particularly vulnerable children and young people, especially Aboriginal and Torres Strait Islander children and young people, those with disability, children and young people seeking asylum, and children and young people in out-of-home care, but not to the exclusion of other children and young people;
  • providing oversight of guardianship arrangements for unaccompanied children and young people who arrive in Australia without the requisite visa or other authority for entry into Australia;
  • the ability to initiate reviews, inquiries or research, and make recommendations;
  • the ability to require the production of information from individuals, agencies and other bodies; and
  • receiving and investigating complaints regarding the breach of the rights of children and young people.

Conclusion

5.20      The committee's inquiry drew out many issues in relation to the establishment of a Commonwealth Commissioner. This ranged from support for the establishment of a Commonwealth Commissioner to assist Australia in meeting its international obligations, to very specific proposals to amend the functions and powers proposed in the Bill.

5.21      Although the committee does not support the Bill in its present form, the committee considers that the evidence received will provide a valuable contribution to the Government's deliberations on the role of a National Children's Commissioner under the National Framework for Protecting Australia's Children. The committee keenly awaits the outcome of those deliberations.

Recommendation 1

5.22      In light of the Australian Government's current consideration of a National Children's Commissioner, the committee recommends that the Bill not be passed.

Senator Trish Crossin

Chair

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