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Legal and Constitutional Affairs References Committee
29/03/2011
Commonwealth Commissioner for Children and Young People Bill 2010

CHAIR (Senator Crossin) —I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee for our inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010. The inquiry was referred by the Senate to the committee on 26 October 2010 for inquiry and report by the last sitting day in May 2011. We have received 93 submissions for this inquiry and all of those submissions have been authorised for publication and are available on the committee’s website. I want to remind witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence. We do prefer all evidence to be given in public, but of course there is the provision to be heard in camera, which you can do at a request of the committee.

To begin our proceedings today, I welcome Ms Fraser, the representative of the Australian Children’s Commissioners and Guardians.

CHAIR —We have a submission from the Australian Children’s Commissioners and Guardians which we have lodged as submission 20, so I am assuming that there are no amendments or alterations to that.

Ms Fraser —No.

CHAIR —I now invite you to provide us with an opening statement and then we will go to questions.

Ms Fraser —Thank you. I would like to advise that Mr Alasdair Roy, who is the Children and Young People Commissioner in the ACT, was attending but, unfortunately, he has not been able to come today. Thank you for the opportunity to make an opening statement, and you do have the submission that we tendered.

Senator Hanson-Young’s bill has generated, we think, a welcome and important discussion about what role a national children’s commissioner could and should play in Australia, and I think the depth and breadth of the submissions on the website attest to that. However, we do as a group have some concerns about some of the bill’s current proposals and we outline those in our submissions. In particular, the issues that we have some concerns about are: the confusion that the role will create because of the overlap of proposed functions with those of existing state and territory commissioners, guardians and ombudsmen; the duplication that could lead to additional layers of bureaucracy, particularly in reporting and data collection; some risks associated with building unreasonable community expectations for the role to monitor and coordinate laws, policies, programs and funding Australia-wide; the need for further consultation as to how the role will interact with other state and territory commissions and guardians; and the missed opportunity to add value to what is working well and to work collaboratively to develop a vision for children and young people’s rights and wellbeing in Australia.

ACCG members all advocate for children and young people at state and national levels, both individually and collectively, and many provide indispensable oversight of state and territory service delivery, particularly to vulnerable children and young people. In six of the eight jurisdictions, children’s commissioners are appointed as independent statutory officers. While commissioner models may be at varying stages of development, all children’s commissioners and guardians have specialist knowledge and experience of their own jurisdiction.

The ACCG members understand the context and the detail of their respective state legislation, and appreciate the strengths as well as the weaknesses of the systems and services in place for children and young people in their respective jurisdictions—particularly the most vulnerable and those in the child protection and youth justice systems. Most of their roles have been uniquely shaped in response to historical events and by significant inquiries. For example, the Queensland Forde inquiry, the New South Wales Woods inquiry, the Victorian ombudsman’s inquiries and the Northern Territory Bath inquiry. My own experience in Queensland is that the combination of roles, including advocate, monitor of laws and services, guardian and acting on complaints is a significant and complex task and it is difficult to conceptualise how one centralised agency could effectively execute all of these roles on behalf of all Australian children. Charging a national commissioner with too many wide-reaching functions could take us further away from our common goal of improving the lives of children and young people in a real and meaningful way.

The ACCG is particularly concerned about the bill’s proposal for a national commissioner to adopt a broad monitoring and reporting role with respect to children and young people’s wellbeing. In the ACCG’s view, it would be more valuable and effective for a national commissioner to advocate for strong and independent oversight at the state and territory level to be strengthened than to try to duplicate or replace existing systems with this generic and significantly diminished national monitoring framework. State and territory commissions are best placed to monitor and report on support for children and young people on the ground in their own child protection systems. They have established networks and practices to gather evidence about children and young people’s individual health, safety and wellbeing, as well as their actual lived experiences in the child protection system. This means that they are better placed to respond more effectively and quickly when needed.

I would like to share with you a Queensland example which demonstrates the importance and complexity of the on-the-ground monitoring and reporting. The Queensland Commission’s Community Visitor Program has 154 community visitors who establish personal relationships with children and young people in care and youth detention by regularly visiting and listening to them to see that they are safe and receiving appropriate care, and also advocating on their behalf. Specialist programs like this are time and resource intensive but can achieve significant improvements in the lives of children and young people. For example, in 2009-2010 community visitors conducted over 47,000 visits to more than 7,200 children and young people in out-of-home care and youth detention centres, and assisted with the resolution of nearly 13,000 service delivery issues. In a recent report the Victorian ombudsman noted that program and identified Queensland’s monitoring framework as one of two models warranting serious consideration by the Victorian government to improve transparency and scrutiny of the Victorian child protection system; the other was in Canada.

To conclude, the ACCG sees benefit in a national children’s commissioner, with a national and international focus on rights-based advocacy for children and young people, and with a particularly important example being refugee young children. However, in establishing this role we must not jeopardise or weaken monitoring and advocacy systems that are already working well in states and territories. We believe that it is critical that we more clearly define the role, functions and powers of a national children’s commissioner, avoid duplication that will create further bureaucracy and divert already scarce resources away from state and territory important oversight roles and mechanisms and clarify the relationship a national commissioner would have with state and territory commissioners and guardians. Thank you.

CHAIR —There has actually been a lot of support for the concept of the children’s commissioner. Some submissions, though, have suggested that rather than go down this path of having a separate body statutory authority, that the children’s commissioner should be another commissioner under the Australian Human Rights Commission Framework. Does your group have a view about that?

Ms Fraser —The view that we have is that the national commissioner should, in a sense, focus in on rights-based advocacy. Our view is that the national commissioner could be located within the Australian Human Rights Commission, and that it would be well placed to take on that role. In our view they could do the extended functions that we think need to be done from a national perspective. In part, they do actually carry some of the responsibilities that people have referred to, particularly with regard to trying to collate information for the UN Convention on the Rights of the Child reports and doing some of the complaints and advocacy work in that arena. From time to time they do look at those sorts of issues. I think further discussion needs to be taken in relation to the merits of that and we need to make sure that the Human Rights Commission’s existing functions and powers regarding children and young people are not diminished in any way, particularly in relation to complaint handling and intervention in court proceedings. I think we are saying that could be a good place for that to be.

CHAIR —So you are not against the creation of a children’s commissioner?

Ms Fraser —No; in fact we support it.

CHAIR —You are just saying not this model?

Ms Fraser —Yes. We do support the model, but we think we need to make sure that the model that is created addresses and strengthens the gaps that already exist and does not, in a sense, duplicate functions that are best done at the state and territory level but adds to that flavour at the national and international level and picks up on some particular issues where we think there are national rights interests.

CHAIR —Secondly, can I just ask you whether you have looked at the intersection between this commissioner’s role and the Immigration (Guardianship of Children) Bill? Do you have a view about that?

Ms Fraser —We have not looked at the intersection in great detail, but we do think that young children coming in without specific visas or entitlements, or in detention—those sorts of areas; refugee children—are a group of children who are certainly outside of our jurisdiction and they would certainly merit attention. As that is a Commonwealth responsibility, we would see that as an area where a national commissioner would have some role. But even in creating a role there I think there is an important issue in not confusing the doing with the role that a commissioner might have in advocating for the best interests of children and their rights, because sometimes in the doing you cannot then comment on the actual doing that you were involved with.

CHAIR —Good point.

Senator HANSON-YOUNG —It was wonderful to get your submission. Of course, the ACCG is best placed to give that state and territory perspective on how a national commissioner for children and young people would look. Firstly, I just want to say that the process of putting the bill to the Senate inquiries is precisely to get that feedback from the various different stakeholders and to see where things need to be tweaked. I agree with you that we would not want to see a piece of legislation go through the parliament that would diminish the roles or protections that are already in place for children in the various different states and territories, so we need to make sure that we link those things properly. I am also very open to the idea of the children’s commissioner being placed, if it were to be agreed to by the parliament, within the Human Rights Commission. I have not been specific about that, because it is an issue where people have different ideas; but if it were about getting it in place, and if that is the place best resourced, then I would be open to that.

I just want to touch on the roles in having a rights-based approach. That is clearly something that is not specific to the roles of the state or territory commissioners or guardians, and I just want you to expand a bit on that gap, and how you think, if we could have a federal or a national commissioner to bridge that gap, how that would help in the work that is already being done in the states and territories?

Ms Fraser —In the work the commissioners are doing at the state and territory level I think that some do have a mandate in terms of promoting rights and wellbeing of children more broadly, as well as the monitoring and oversight and the complaints functions and advocacy roles. I guess our view is that the rights-based advocacy that needs to occur with the national commissioner needs to occur in the national and international spheres. Where there is probably work going on by some state and territory commissioners on children’s rights—and in the Australian context they are often embedded in legislation designed to protect them, like the child protection legislation—we need to ensure that those rights are actually being picked up in the service frame and how those children are actually being treated. 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.

These are areas where the existing commissioners at the state and territory levels have, from time to time, put forward submissions and advocated, which have been well received. I think some of that work is useful because it highlights what is actually impacting on children in the local jurisdictions. 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.

Senator HANSON-YOUNG —One of the recommendations—and it was a unanimous recommendation—of the Forgotten Australians report was for a federal children’s commissioner. In some ways that is picking up, as you are saying, that there are some federal programs. But at the moment there is nobody at that national level whose responsibility it would ultimately be to advocate for those children. I just wonder, based on learned experience, if you believe those types of incidents in the past give weight to ensuring that we do put a role like this in place?

Ms Fraser —I think that there are gaps in that context where improvements do need to occur. I think that this role could pick up on those. I think the important thing is learning also from the lessons where we have the intersection of federal, state and territory systems and where, in the past, sometimes we added new things in there to achieve the outcome that we were seeking and, instead of achieving something better and some consistency, we ended up with a little bit of overlap and duplication because there may have been gaps. I think there is a bit more work to do in trying to design that, to actually make sure that the framework works in that way.

Senator HANSON-YOUNG —Have you had any thought as to how—taking all of that on board, and not wanting to diminish but rather to strengthen and to fill those gaps from a national perspective—the state and territory individual commissioners could interact, either formally or informally, with a federally based commissioner?

Ms Fraser —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. We look at what are some of the issues that are coming up; where do we need to advocate on that. People like the Human Rights Commissioner is invited to that. We are quite interested in looking at what various ombudsmen are doing in our territories. I guess what we are always looking to see is where can we add value to what is actually happening there because, clearly, the responsibility of policies and programs and services spans governments and there are also contracted people within that frame as well as advocates and other people. 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.

From the ground, I guess what I am looking at is the example that I gave in Queensland: if a child has an issue or someone has an issue about services to a child, I think it needs to be clear to them where they are going to get the most immediate, quick response in terms of the issue without thinking, ‘Well, maybe I’ll go to here,’ and then being referred back, or not having the clarity of where do to go for what particular purpose. It is for that that we say we would like that sort of clarity. We would be more than happy to work on the specifics of it. At this stage what we have provided is really broad-brush information. As I said before to Senator Crossin, we support the idea and we have for a long time, even though our commissions have only been in place for 12 or 14 years, and some for much less time. So we do know that there is a place for it but we want to make sure that where it comes in links and adds value, and if there are gaps at the state level then the consistency in that framework needs to be supported as well so it is not an opportunity, in my head, for this role to then fill gaps that should rightfully be filled by other parts of government as well.

Senator HANSON-YOUNG —Sure. Thank you.

CHAIR —Senator Barnett?

Senator BARNETT —Thanks, Ms Fraser. I just want to flesh out some of those answers and concerns expressed about duplication and overlap with the state commissioners and this view that if a Commonwealth commissioner is appointed then they are going to solve all the problems of at least Australia. I want to say that I really appreciated the matrix that you provided in your submission regarding the roles and responsibilities of the state and territory commissioners and focusing on service delivery in those states and territories regarding child protection, juvenile justice and so on. Can you in your own words flesh out your role and responsibilities in Queensland so that the committee can get a better feel as to your roles and responsibilities, just a short summary, if that is possible?

Ms Fraser —In Queensland, and as the Queensland children’s commissioner, as I said before, all of us have started from fairly unique positions of recommendations that certain things were not travelling well for children. My mandate now is to promote and protect the rights, interests, safety and wellbeing of all children in Queensland.

Senator BARNETT —Zero to 17?

Ms Fraser —Zero to 17, placing particular focus on vulnerable children. They are nominated in my legislation as Aboriginal and Torres Strait Islander children, children who are disabled in some way, children who may be homeless, children who have mental health issues and children who are geographically isolated; so there is a requirement to look at the particular needs of vulnerable or disadvantaged groups in what are known to be development attainments.

Within that, just to be clear: for all children in Queensland I have a general advocacy role, and I can look at different proposed policies, legislation and programs and make comment on all of them. I try to bring to that information which I know from research may assist the policy makers and the program developers to promote children’s wellbeing and to address the particular needs of groups who may not be sharing the particular advantage in that area. That is for all children.

I have particular responsibilities for children in regulated service environments, and regulated service environments in Queensland are deemed to be those areas where children have to receive services. I am talking there about if they are going to school, or if they are taken into foster care, or if they are placed in detention, or they are in a residential care environment or those service environments where we think it is a positive developmental experience for children to be involved in. My act requires those organisations to manage the risks for children in those contexts. People who are working in those contexts have to be screened and achieve a working-with-children check, and we monitor all those people in context of any changes in criminal history.

For kids in regulated service environments, which are quite a lot, I have other responsibilities. With regard to children on child protection orders who are in residential facilities of any kind—that is, a mental health facility, a respite facility or if they have a disability, or if they are in a children’s shelter or in detention—

Senator BARNETT —What about immigration detention?

Ms Fraser —I do not deal in the immigration detention area, but in any state government funded facility or contracted facility I have a responsibility for monitoring and seeing what is happening for those children in terms of their safety and wellbeing. As I said before I have a capacity to visit all those children, and we do visit them on a regular basis to ascertain whether they are in fact getting the services and whether they are safe. Then we raise those issues with the agencies at the local level, and basically seek the children’s perspective on the impacts on them of the services that they are getting in care.

Senator BARNETT —That is an extremely comprehensive overview, for which I am very thankful. It seems to me that you provide a very comprehensive service to children and young people in Queensland in terms of their rights and advocacy for and on their behalf. One of the issues you have already noted in your opening remarks, and it is in your submission, is this concern regarding duplication. It seems to me to be a very real one. I assume you report to the minister and other key stakeholders in Queensland when you do your annual report?

Ms Fraser —The annual report is tabled in parliament, and I meet with a joint parliamentary committee twice a year.

Senator BARNETT —What is the name of that committee?

Ms Fraser —The Social Development Committee; they are responsible for overseeing and monitoring the performance that we provide. I do not report to a minister; my act requires me to be independent. Clearly I do not sit in parliament, so in order to get my reports into parliament I provide them to a minister who has responsibility for the legislation that I work under. But if I provide that report and require her to table it, she is required to table it within 14 days.

Senator BARNETT —Understood. When you have your two meetings twice a year with your colleagues in the states and territories, do you then report back to either your state joint parliamentary committee or the state minister? Or from time to time do you ever report to the relevant Commonwealth minister or Commonwealth department that may have an interest in your views and the views of your state and territory colleagues?

Ms Fraser —I would quite often write to various ministers at all levels of government with respect to any particular point that I thought may be impacting on children in Queensland or a particular child in that context and refer matters for their consideration. Sometimes if it is an issue that I have picked up I might then liaise with the other commissioners around Australia and see if it is an issue that they want to join in with, and sometimes we write jointly to a Commonwealth minister in that respect. At a state level I would write myself.

Senator BARNETT —I am just thinking of your interaction with the federal government from time to time. Do you have a chairman or chairperson of your state and territory jurisdictions or do you just agree that you all sign it jointly to express your views to the Commonwealth authority or Commonwealth minister?

Ms Fraser —It is a voluntary group that meet; they have seen benefit in doing that. When we meet, we meet in rotating jurisdictions and the person in that jurisdiction chairs the meeting for that period. We do not have a permanent chair per se.

Senator BARNETT —But it is an official meeting?

Ms Fraser —It is a meeting that we think is official, but it does not have any statutory requirement. If we decide that we are going to jointly submit something to a federal government minister, we would make a decision about who is going to coordinate that. If it is joint, obviously it means that everyone has agreed they want to participate in it. In this one, for instance, I took the lead in coordinating it but everyone signed off on it.

Senator BARNETT —You have made a point in your submission regarding visa requirements and legal cases relating to the rights of children and young people and you have expressed the view that it is vitally important in supporting vulnerable children and young people, they require specialists and technical knowledge and legal authority should be arranged through the agreements with state governments. What about detention centres—would that apply in detention centres?

Ms Fraser —Are you talking about youth justice detention centres?

Senator BARNETT —No, I am talking about immigration detention centres.

Ms Fraser —Because I have not had a role there I am not familiar with what is there, but I would think that people who are needing to link in would have to have quite a few skills in knowing what they were doing. It is a very different area, you have obviously got different cultural backgrounds that you are dealing with, so I think there would have to be quite a bit of thinking about how you were going to appropriately move into that space and advocate or connect with young people. A lot of what commissioners do is try to bring forth the point of view of young people and children and what the impacts are on them, as opposed to broadly advocating for the service environments.

Senator BARNETT —So what you are saying is that specialist and technical knowledge is required in that instance of immigration detention, as an example, and you think that principle should apply in that type of situation?

Ms Fraser —I think it would have to be someone who would be able to establish some rapport with the people who were there, to have some understanding of the impact of change and what was happening. They would have to have some skills in dealing with people from other cultures and some capacity to know how and what the context was in terms of who they need to link with to achieve change there. In some instances, some of the changes might be quite practical and simple and you would deal with those at the local level, some of them might be quite significant programmatic issues and some of them might be policy matters.

Senator BARNETT —Thank you very much.

Ms Fraser —Could I just add one more thing? In the summary that I made, whilst I was comprehensive in what I was talking about, there were probably two functions that I did not refer to. One of those was our complaints and investigation function, which we do have, and I can receive complaints from children in Queensland on an individual basis.

Senator BARNETT —Do other states and territories have a complaints function?

Ms Fraser —Some of them do. Some of them are not on an individual basis. Some of them are on a systemic basis. I do both in Queensland.

Senator BARNETT —Could you let us know, perhaps on notice?

Ms Fraser —It is in that spreadsheet matrix. The other function I have is maintaining the Queensland child death register for all children in Queensland and chair the committee that reviews any deaths associated with children in care. A lot of the information we seek to use to input into prevention activities. There is a lot of data there. There is no point keeping child death statistics if you are not going to use it for some benefit.

CHAIR —Thank you very much. We thank you for the submission as well.

Ms Fraser —Thank you very much. We would certainly be very happy to assist with any further input if that is relevant.

CHAIR —We will be in touch if we need that assistance.

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