CHAPTER 2


CHAPTER 2

Issues

2.1        Overall support for the Bill was very strong among submitters.[1] The Law Council of Australia called the establishment of the new office:

...an important step towards addressing gaps in the implementation of Australia's international human rights obligations in relation to children.[2]

2.2        A submission made by a consortium of Non-Governmental Organisations (NGOs) and endorsed by a large number of submitters welcomed the introduction of the Bill and stated:

[T]he NGO consortium is eager to support implementation of the National Children's Commissioner and to work collaboratively with the new Commissioner.[3]

2.3        The committee notes that in 2005 the United Nations Committee on the Rights of the Child expressed concern that there was no national commissioner in Australia with a specific mandate to monitor children's rights.[4]

2.4        The Australian Human Rights Commission (AHRC) has also repeatedly called for the establishment of such an office,[5] and welcomed the introduction of the Australian Human Rights Commission Amendment (National Children's Commissioner) Bill 2012 (the Bill), explaining why it was needed:

Under the Australian Human Rights Commission Act 1986 (the AHRC Act), the Commission has a number of statutory functions to promote and protect human rights, including those rights set out in the Convention on the Rights of the Child. The Commission has conducted a number of significant inquiries and projects on children's rights. However, there is no specific commissioner dedicated to child rights. Moreover, the Commission is not specifically resourced to conduct policy work in children's rights.[6]

2.5        In 2010, the AHRC set out the essential features of a national children's commissioner office which could make an effective contribution to the promotion and protection of children's rights in Australia.[7] These features are:

  • independence from government
  • statutory authority and power, including security of tenure
  • adequate resourcing
  • accessibility to children, including establishment of a child-appropriate complaints process
  • exclusive focus on children under 18 years of age
  • ability to act proactively and reactively and to direct his or her own agenda.[8]

2.6        The AHRC is satisfied that the proposed legislation 'enables these key features of the role to be fulfilled.'[9]

2.7        A number of suggestions to improve the Bill were made, and some concerns expressed by a variety of submitters and witnesses. The remainder of this chapter will consider these concerns and suggestions.

Functions of the position

2.8        The functions of the new position are set out in section 46MB of the Bill:

(1) The following functions are conferred on the Commission:

a) to submit a report to the Minister that complies with subsection (3) as soon as practicable after 30 June in each year;

b) to promote discussion and awareness of matters relating to the human rights of children in Australia;

c) to undertake research, or educational or other programs, for the purpose of promoting respect for the human rights of children in Australia, and promoting the enjoyment and exercise of human rights by children in Australia;

d) to examine existing and proposed Commonwealth enactments for the purpose of ascertaining whether they recognise and protect the human rights of children in Australia, and to report to the Minister the results of any such examination.[10]

2.9        The functions outlined for the new commissioner were welcomed by many submissions, including that from the eight-member NGO consortium:

We acknowledge the important role of the National Children's Commissioner (NCC) in promoting public discussion and awareness of issues affecting children, promoting the  use of evidence of what works in improving the lives and opportunities of children and young people, identifying research or evidence gaps, conducting education programs, and consulting directly with children, young people and representative organisations. The NCC should use finding from these roles to assess whether and how Commonwealth legislation, policies and programs that relate to children and young people respects their human rights and improves wellbeing and development.[11]

2.10      The committee noted that some submitters questioned why the principal functions of the new office were concerned with reporting, research, advocacy and monitoring instead of proactive protection.[12]

2.11      The committee is of the view that the functions outlined in the Bill are intentionally broad. As submitted by the Australian Children's Commissioners and Guardians (ACCG), this ensures flexibility:

The ACCG notes that the broad nature of the National Children's Commissioner's functions as outlined in the Bill will provide the National Children's Commissioner with the flexibility and ability to address a wide range of child rights issues as the occur, such as the impact of national welfare reform initiatives on children and their families.[13]

Title of the position

2.12      The committee noted the AHRC's preference for the title of the new role to be 'Australian Children's Commissioner', instead of 'National Children's Commissioner' as is currently proposed.[14]

2.13      The AHRC sets out an argument for the suggested amendment, pointing out that its preferred approach would help to clearly distinguish the national commissioner from state and territory commissioners, and, perhaps most importantly, would identify the commissioner with Australia internationally. The AHRC believes that the name 'National Children's Commissioner' does not enable international stakeholders to immediately and easily associate the position with Australia.[15]

2.14      Other submitters to this inquiry did not suggest amending the title, so the committee sought clarification on the rationale behind the title from representatives of the Attorney-General's Department, who explained:

Without saying that there is a clear rationale underlying the use of 'national', it does underpin the concept of national advocacy or the cross-jurisdictional coverage of the interests of the children's commissioner, perhaps.[16]

2.15      The proposed title has been in circulation for some time, and highlights the very concept of promotion of children's rights at the national level. Given that stakeholders for the most part welcomed the establishment of the new role as outlined by the Bill, the committee is not aware of other arguments for changing the title.

Committee view

2.16      The committee notes the AHRC's argument concerning international identification of the new commissioner with Australia. The committee however believes that use of the word 'national' in the title captures the essence of the new role, which is important for the community to be able to clearly distinguish the National Children's Commissioner from state and territory counterparts.  The committee sees no compelling reason to remove the word 'national' from the title.

Human rights implications

2.17      Subsection 46MB(6) of the Bill stipulates that the new commissioner must have appropriate regard to the following international treaties in performing his or her functions:

a) the Universal Declaration of Human Rights (United Nations General Assembly Resolution A/RES/217(III) A (1948); and

b) the following, as amended and in force for Australia from time to time:

i. the International Convention on the Elimination of all Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40);

ii. the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5);

iii. the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23);

iv. the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9);

v. the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4);

vi. the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

(c) such other instruments relating to human rights as the Commissioner considers relevant.[17]

2.18      A number of submissions called for this list of international instruments to which the new commissioner must have regard to be extended.[18]

2.19      The committee noted particularly marked support for the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Optional Protocol to this Convention (OPCAT) to be added to the list of instruments to which the Commissioner must have regard.[19]

2.20      Submitters suggested explicit recognition of other international instruments, as well as of the CAT. Uniting Justice, for example, advocated adding a number of instruments, including (but not limited to):

  • The Convention Relating to the Status of Refugees;
  • The Protocol Relating to the Status of Refugees;
  • The Optional Protocol to the Convention on the Rights of the Child on the Sale  of Children, Child Prostitution and Child  Pornography; and
  • The Declaration on the Rights of Indigenous Peoples.[20]

2.21      The St Vincent de Paul Society felt it would be useful to also add the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, while a number of submissions echoed calls for the Declaration on the Rights of Indigenous Peoples to be added. These included the Secretariat of National Aboriginal and Islander Child Care and Women's Legal Services (New South Wales).[21]

2.22      In addition, the AHRC pointed out that although the Bill refers to the CRC at subsection 46MB(6), it could benefit from explicitly recognising the importance of the treaty  as a reference point for the new commissioner in preparing his or her annual report.[22]

2.23      The committee put these questions to representatives of the Attorney-General's Department, specifically asking why the CAT, OPCAT and the Optional Protocols on the Rights of the Child were not listed by the Bill:

It is a good question. It relates primarily to ensuring that these provisions are consistent with the existing Australian Human Rights Commission Act. So the first thing is that the convention against torture is not currently one of those instruments. The question of whether the convention against torture should be included as a relevant international instrument is something that is being looked at in the project to consolidate all of the antidiscrimination laws. The view was taken that that was the best time to look at that issue rather than to pre-empt it by making that change now. The other thing is that the instruments tend to be those primary core human rights instruments and, as time goes on, the list of possible instruments that are relevant changes. I think the provision, for example, 46MB(6)(c), which says such other instruments relating to human rights as the commissioner considers relevant.[23]

Committee view

2.24      The committee shares submitters' views on the importance of the CAT, OPCAT and the Optional Protocols on the Rights of the Child, among other instruments cited by submitters. At the same time, the committee notes the Department's position regarding the need to ensure that the relevant provisions are consistent with the current AHRC Act.  After careful consideration, the committee has decided to defer judgement on the possible inclusion of a list of specific instruments in the Bill until the consolidation of anti-discrimination laws has been delivered. The committee will monitor the process of consolidation, and possibly revisit the question of the inclusion of specific instruments in the legislation in the future.

Vulnerable or at risk children

2.25      The Bill does not specify which particular groups of children the Commissioner can focus on, but at section 46MB gives the Commissioner the discretion to identify and focus on those who are particularly vulnerable or at risk:

(4) In performing functions under this section, the National Children's Commissioner may give particular attention to children who are at risk or vulnerable.[24]

2.26      The Bill's Explanatory Memorandum clarifies that this discretion includes, but is not limited to, a number of clearly identified 'at risk' groups of children. The Explanatory Memorandum states the  following:

New subsection 46MB(4) gives the Commissioner a discretion, when performing any of his or her functions, to focus on particular groups of children who are at risk or vulnerable.  For example, children with disability, Aboriginal and Torres Strait Islander children, homeless children or those who are witnessing or subjected to violence.[25]

2.27      The use of a broad-ranging discretion in the legislation, teamed with the listing of specific examples in the accompanying Explanatory Memorandum was raised by a number of submissions, many of which sought either explicit reference to particular groups of children in the Bill, or an expansion of the examples of vulnerable children listed in the Explanatory Memorandum. These focused primarily on Aboriginal and Torres Strait Islander children, and children seeking asylum in Australia.

Aboriginal and Torres Strait Islander children

2.28      Submissions such as those from King & Wood Mallesons Human Rights Law Group, the National Aboriginal and Torres Strait Islander Legal Service (NATSILS) and the Secretariat of National Aboriginal and Islander Child Care (SNAICC), called for explicit recognition of Aboriginal and Torres Strait Islander children as an at risk and vulnerable group.[26]

2.29      SNAICC, for example, contended that existing provisions were insufficient to ensure that the rights of Aboriginal or Torres Strait Islander children were protected and promoted. SNAICC pointed out that Aboriginal and Torres Strait Islander children were vulnerable and at risk in many ways, so much so that they deserved special recognition:

The extent of poverty experienced by Aboriginal and Torres Strait Islander peoples ranges from between 40 to more than 50 per cent across Australia, whether for remote or urban areas. Aboriginal and Torres Strait Islander peoples experience significant disadvantage across all economic and social development indicators, including being five times more likely to live in overcrowded households and having a life expectancy of 10 and 11.5 years below non-Indigenous Australians for women and men respectively. Aboriginal and Torres Strait Islander children bear the brunt of this reality, struggling against the cycle of ongoing impoverishment and exclusion.[27]

2.30      SNAICC added:

All children have the right to grow up free from all forms of physical or mental violence, injury or abuse, neglect, maltreatment or exploitation. Aboriginal and Torres Strait Islander children are however particularly exposed to risks of violence, neglect and abuse, in circumstances of inadequate state support.

A combination of these kinds of factors leaves Aboriginal and Torres Strait Islander particularly vulnerable as a group of children. These factors require specific strategies and approaches that draw on Aboriginal and Torres Strait Islander strengths, knowledge and cultures to create sustainable change.[28]

2.31      SNAICC recommended responding to the particular and pronounced vulnerabilities of Aboriginal and Torres Strait Islander children by appointing a Deputy Children's Commissioner who would be focused on this group of children.[29]

2.32      This call was echoed by NATSILS:

The NATSILS propose that the required focus on the situation of Aboriginal and Torres Strait Islander children, so as to ensure the promotion and protection of their human rights, could be achieved through the following:

  • Inserting a clause to establish a Deputy National Commissioner that has a specific
  • mandate for focusing on Aboriginal and Torres Strait Islander children;
  • Section 46MB (4) of the Bill specifies that ‘the National Children’s Commissioner may give particular attention to children who are at risk or vulnerable’. If a Deputy National Commissioner is not established then s 46MB (4) should be amended to include the requirement that ‘in performing functions under this section, the National Children’s Commissioner must have particular regard to the situation of Aboriginal and Torres Strait Islander children’.
  • Amending s 46MB (6)(a) to include the Declaration on the Rights of Indigenous Peoples; and
  • Amending s 46MB (5)(a) to specify that consultation with children, in particular Aboriginal and Torres Strait Islander children, must be done in a culturally competent manner.[30]

2.33      The eight-member NGO consortium also added its voice to calls for special recognition to be given to 'the unique status of Aboriginal and Torres Strait Islander children and young people as the First Peoples of Australia.'[31]

Children seeking asylum in Australia

2.34      In the same vein, many submissions called for children seeking asylum in Australia to be explicitly referenced either in the Bill, or the Explanatory Memorandum.[32] The Law Council of Australia, for example, stated:

The Law Council notes that neither the Bill nor its explanatory memorandum mention children in immigration detention as being considered 'at risk or vulnerable'. To ensure that their rights are not overlooked, the Law Council suggests that the Committee recommend that the explanatory memorandum be redrafted to refer to 'children seeking asylum in Australia, or in immigration detention or whose parents or guardians are seeking asylum in Australia or are in immigration detention', to the groups of children who may be considered 'at risk or vulnerable'.[33]

2.35      The Law Council also highlighted the need for clarity around the functions of the new commissioner regarding children residing in places excised from Australia's migration zone:

The Law Council...is concerned about the terminology used in section 46MB of the Bill. In particular, that the functions of the Commissioner only refer to the 'human rights of children in Australia'. Such an expression may lead to uncertainty about whether the Commissioner's functions extend to children and young people in immigration detention in areas excised from Australia's migration zone such as Christmas Island.[34]

2.36      Other submissions, such as that from the NGO consortium, included in their submissions a call for the appointment of an independent Children's Guardian for unaccompanied minors seeking asylum in Australia.[35]

2.37      For the most part, submissions sought to ensure that the rights of children seeking asylum would be promoted and protected by the new commissioner irrespective of their residency status. Representatives of the Hotham Mission Asylum Seeker Project and the Asylum Seeker Resource Centre told the committee:

We support the establishment of the National Children's Commissioner. We are pleased to see that the bill will include children in Australia. Obviously working with asylum seeker children who are particularly vulnerable, we are particularly concerned with this group and we definitely would like to see that they are under the remit of the Children's Commissioner.[36]

We would also like the vulnerable list to be expanded to include suspected people-smuggling minors, just as a recognition that both asylum seeker children and suspected people-smuggling minors are groups of vulnerable children who are in Australia.[37]

2.38      The committee sought clarification on the question of specific groups of vulnerable children from representatives of the Attorney-General's Department. The Department explained that there was no need to reference these specific groups of children in the legislation, as indigenous children, refugee children and children in detention are all already covered by the Convention on the Rights of the Child, which is in turn explicitly referenced by the Bill:

[Indigenous children and children seeking asylum] are also already picked up, as you have already pointed out, in relation to section 46MB(6)(b), which sets out the instruments which the commissioner must have regard to in carrying out its functions. That convention is listed there. As you said, within the Convention on the Rights of the Child refugee children, children in detention and Indigenous children are specifically covered. So I am not sure that as a question of a law it makes any difference.[38]

Committee view

2.39      The committee recognises the importance of promoting the rights of children who are seeking asylum and accepts the need to ensure that the new commissioner will be able to look at and advocate for their needs. The committee also unequivocally recognises the particular vulnerability of Aboriginal and Torres Strait Islander children.

2.40      The committee understands that the AHRC can already look at a broad range of human rights issues. In many ways, the power of the AHRC to examine human rights issues stems from its very broad discretion. The Bill will merely enable the AHRC to delegate specific functions to the new commissioner. As put by the Assistant Secretary of the Attorney-General's Department:

The capacity of the commission to inquire into human rights issues is quite broad. As we know, the commission conducts inquiries into specific complaints about human rights and particular issues arising under all those treaties. That is a power of the commission that already exists; it is not affected by this bill but, because the commissioner will sit within the Australian Human Rights Commission, the capacity for any function of the commission to be delegated to that commissioner will exist so it certainly picks up the full range of possible issues in that respect.[39]

2.41      Furthermore, the committee notes that the Bill makes explicit reference to the Convention on the Rights of the Child, which lists Indigenous children and children in detention. That being the case, the committee considers that it would be unnecessary and cumbersome to separately list these individual groups of vulnerable children. Indeed, to do so could potentially be exclusionary, and as such, highly undesirable. The committee is satisfied that the new commissioner will have ample discretion to look at and promote the interests of any and all groups of vulnerable and at risk children.

Consultation with persons and organisations

2.42      The committee considered the question of interaction between the new commissioner and existing state and territory children and young people's commissioners.

2.43      At present, the importance of such collaboration is referred to only by the Explanatory Memorandum, which states:

It is not intended that the Commissioner will duplicate the work of State and Territory children’s commissioners and guardians.  Rather, the Commissioner will work closely and collaboratively with State and Territory counterparts to identify national or cross-jurisdictional matters that would benefit from national leadership.  This will ensure the most effective use of resources across all levels of government.[40]

2.44      For its part, the Bill does not refer specifically to state and territory children's commissioners, but does at subsection 46MB(5) stipulate that the National Children's Commissioner may consult with a variety of 'authorities':

(5) In performing functions under this section, the National Children’s Commissioner may consult any of the following:

a) children;

b) Departments and authorities of the Commonwealth, and of the States and Territories;

c) non governmental organisations;

d) international organisations and agencies;

e) such other organisations, agencies or persons as the Commissioner considers appropriate.[41]

2.45      Accepting that the Bill does refer to state and territory departments and authorities, the AHRC nevertheless contended that the Bill should explicitly reference state and territory children and young people's commissioners in recognition of the importance and relevance of their work.[42]

2.46      The committee also noted suggestions that the above list be altered or expanded to include, for example, parents.[43]

2.47      Child Abuse Prevention Research Australia called for 46MB(5) to be amended to replace the word 'may' with 'must', thereby requiring the new commissioner to consult with the listed organisations and individuals.[44]

Committee view

2.48      The committee notes these concerns and the intentions behind them, but is not of the view that the new commissioner should be compelled to consult with a prescribed list of persons and organisations when performing his or her functions. The committee believes that the National Children's Commissioner should have the discretion to consult with a wide range of persons and organisations as deemed appropriate by the office. The committee is satisfied that the provision set out above would allow the new commissioner adequate discretion to consult with parents, or indeed any other persons or organisations as necessary.

Resourcing

2.49      The office of the National Children's Commissioner would receive $3.5 million in funding over four years.[45]

2.50      Significant concerns were expressed by a diverse range of submitters about resource allocation for the new office.[46] CREATE Foundation, for example, stated:

CREATE is concerned that the current budgetary allocation of $3.5M over 4 years will not enable the National Children’s Commissioner to adequately exercise the statutory function proposed within the Bill. We note that Ms Branson of the Australian Human Rights Commission suggested that at $3.5M the Commission would not be able to afford more than 3 other staff members, none of which would be lawyers. CREATE is concerned that an inappropriate level of funding for this position may lead to the provision of tokenistic systems advocacy services that are not representative of, or in the best interests of, children and young people.[47]

2.51      The Australian Research Alliance for Children and Youth (ARACY) posited that, without adequate funding, the new commissioner would 'struggle to advance children's wellbeing using rights or any other mechanism at their disposal.'[48] Defence for Children International shared this view.[49]

2.52      For its part, the AHRC has welcomed the funding, but cautioned that it would not be adequate to meet the real cost associated with the new office:

For example, the Commission expects that there will be a rise in complaints of breaches of the CRC made to the Commission under the Australian Human Rights Commission Act 1986 (Cth) and of discrimination made under the Age Discrimination Act 2004 (Cth). There will also be additional demands made on other Commission staff, including on our legal and communications teams as well as on finance and personnel staff. This increase in the general workload of the Commission is not recognised in the amount of funding that has been provided for the creation of the position.[50]

2.53      To illustrate the point, the AHRC cited the example of the office of the Age Discrimination Commissioner:

By way of example, the current funding of the Age Discrimination Commissioner, which is comparable to that allocated for the Children’s Commissioner, enables the Commission to employ two policy staff and an executive assistant for the Commissioner. It covers basic overheads but does not take into account the flow on effects to other areas of the Commission. Since the full-time Age Discrimination Commissioner was appointed there has been a 15% increase in age discrimination complaints and a 38% increase in written and telephone enquiries in relation to age discrimination. To assist the Age Discrimination Commissioner to undertake substantial work in the area of stereotyping of older people in the media special funding of $2.1m over four years has been provided to the Commission.[51]

2.54      Furthermore, subsection 46MB(1) sets out the requirement for an annual report from the new commissioner to be presented to Parliament. This is a resource-intensive undertaking which the AHRC believes could be limited by inadequate funding:

Nor will the announced funding be adequate to allow the Commissioner to engage in any substantial project work. A high quality annual report would ideally be informed by work of this kind.[52]

Committee view

2.55      The committee acknowledges concerns around the allocation of funding for the National Children's Commissioner, and agrees that adequate resourcing is critical for the office to deliver optimally against its objectives. At the same time, however, the committee is cognisant of the fact that the new office is being established in a tight fiscal climate. For this reason, the committee believes it would be worthwhile to revisit the question of funding for the new role once the office is operational and its optimal operating budget can be more accurately judged.

Conclusion

2.56      The committee notes considerable support for the Bill from individuals and organisations who made submissions to the inquiry. The committee considered these submissions carefully, and acknowledges that some strong points were raised, notably those relating to particularly vulnerable or at risk groups of children, such as Aboriginal and Torres Strait Islander children.

2.57      The committee sought clarification on the issues raised and outlined in this report, and is satisfied that the Bill is broad enough to allow the new commissioner the discretion to focus on any and all vulnerable or at risk children in Australia. It is the committee's view that creating a list of specific groups of vulnerable children in the legislation would by necessity require that list to be exhaustive, so as not to place any group beyond the scope of the new office. The committee sees little benefit in being overly prescriptive in the legislation, and prefers the functions of the office to remain broad.

2.58      The committee considers this Bill to be an important step in promoting the rights and wellbeing of all children in Australia.

Recommendation 1

2.59      The committee recommends that the Bill be passed.

 

Senator Trish Crossin
Chair

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