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Legal and Constitutional Affairs References Committee
Commonwealth Commissioner for Children and Young People Bill 2010

CHAIR —Welcome. Families Australia has lodged submission No. 17 for our purposes. Do you have any alterations or changes you need to make today?

Ms Warrilow —No, we do not.

CHAIR —Then I invite you to make a short opening statement. Then we will go to question.

Ms Warrilow —I am going to read a short opening statement. We welcome the opportunity to provide evidence to the Senate committee. Families Australia is a national peak independent not-for-profit organisation that aims to protect and promote the wellbeing of families and children in Australia. We are in our 10th year of operation and we have around 400 national members. The member organisations are those that are involved in working with children and families. We have played a leading role in developing Protecting children is everyone’s business: national framework for protecting Australia’s children 2009 to 2020, and we coordinate the Coalition of Organisations Committed to the Safety and Wellbeing of Australia’s Children, a consortium of around 100 major non-government community organisations and researchers who are working closely with governments to implement the national framework.

We strongly welcome the bill and we have made several recommendations in our submission. Our submission rests principally on our experience in helping to develop and implement the national framework for protecting Australia’s children, which was endorsed by COAG in 2009. The framework aims fundamentally to increase the level of policy and program engagement by Commonwealth, state and territory governments in the interests of child safety and wellbeing. It seeks to raise the profile of these issues at the community level and to bring about greater national consistency and equity in terms of how we support children, families and carers in areas such as out-of-home care and financial and non-financial support for foster and kinship carers.

A Commonwealth commissioner would be a really important complement to the existing and planned suite of national framework measures. In moving to create such an office, however, it is a critically important matter to delineate the role of the Commonwealth commissioner and those of the existing state and territory commissioners. Our view is that a Commonwealth commissioner is needed to perform the functions that are distinct from those at a state and territory level by virtue of the Commonwealth’s specific and growing roles and responsibilities towards children and young people. A major point of difference with the state and territory arrangements is that the Commonwealth, with COAG agreement, has determined that it will, through the national framework as well as other national approaches—for example, the national quality agenda for early childhood education and care—instigate a whole-of-nation and whole-of-government approach in order to achieve better interagency coordination, enhance public awareness of children’s issues and reduce cross-jurisdictional inequities.

The expectation embodied in the national framework is that such a new joined-up approach will bring better outcomes in the complex policy areas such as Closing the Gap, with young people transitioning to independence from out-of-home care and support for carers. Moreover, the national framework envisages a clarification of the roles and responsibilities of different levels of government in the provision of early intervention and prevention services, more targeted family support services and statutory interventions—in short, moving towards a cascading system of clearly defined roles and responsibilities for each level of government with clear coordination and planning mechanisms. These goals represent a really significant change in the way we do things in Australia and will require considerable and ongoing administrative and political propulsion.

While there is a government NGO consultative apparatus in place to monitor and progress the change under the national framework, there is little or no independent, national-level analysis and assessment that can inform government, NGOs and the public about the collective process towards these goals. A Commonwealth commissioner would fulfil this vital role. We also argue that the Commonwealth has specific legislative and policy responsibilities towards particular groups of children and that the discharge of these responsibilities would be greatly enhanced by the independent monitoring and evaluation role of the Commonwealth commissioner. We have in mind the Commonwealth’s role in relation to Aboriginal and Torres Strait Islander children, the care of children of families seeking asylum and the wellbeing of adults who, as children, suffered abuse while in state sanctioned out-of-home care—the forgotten Australians.

Finally, we strongly support the proposition that a Commonwealth commissioner would be an ideal means by which the views of children and young people can be systematically gathered. We do not see a routine role for the Commonwealth commissioner in handling individual cases. The commissioner should play a role in facilitating the expression of children’s views across a range of topics. At present, there is no standing comprehensive means for the Commonwealth to collect such information and a Commonwealth commissioner would therefore potentially play a valuable role in facilitating the transmission of these voices to those who need to hear them. We welcome any questions.

Senator BARNETT —Thank you for your submission and your evidence today. How do we avoid the duplication of the functions with the state and territory commissioners and the Commonwealth commissioner?

Mr Babington —The important principle, from our point of view, is to have a cascading national system where we have a Commonwealth commissioner and then state and territory commissioners or guardians. We acknowledge that the state and territory commissioners and guardians have a range of differing mandates, as the previous testimony here indicated. We think that over time we would like to see a greater consistency being achieved in some of those mandates, but a very good starting point, from our point of view, is to at least start with a Commonwealth commissioner whose remit is to broadly look at children’s wellbeing.

We say with some degree of optimism and hope that we can achieve greater national consistency over time—by which I mean a greater consistency across the jurisdictions in the remits of those commissioners—by virtue of the undertaking embodied in the National Framework for Protecting Australia’s Children that as a nation we move towards taking more consistent approaches which treat children, families, carers and communities more equitably.

Senator BARNETT —Do you support a rights based approach, a welfare based approach, or both?

Ms Warrilow —We would support underpinning the rights based approach but we also envisage that there may be some welfare aspects to the role, but certainly not looking at any duplication around the state and territory roles and not getting into the welfare approach around individual cases for children.

Senator BARNETT —Do you think that the Commonwealth commissioner should be able to review and initiate inquiries by itself?

Mr Babington —Yes, we do have the view that the Commonwealth commissioner, as an independent authority, should be able to initiate inquiries. However, I think it is important to delineate that there would be differences between inquiries into specific cases which would in general be more appropriately handled by state and territory commissioners or guardians. It would be helpful for a Commonwealth commissioner’s office to provide information and possibly guidance to people in pursuing their individual cases but not necessarily take up those cases in detail because of the concern about duplicating the processes which rightly occur at those levels of government which are closer to those families and communities.

Senator BARNETT —I know Families Australia represents a lot of different organisations. I have not been to your website to assess that and I did not see it in the submission. Can you just tell us some of your members and how many there are?

Mr Babington —We have about 400 member organisations around Australia. These are broadly in two categories. There are general members, of whom there are approximately 25 or 28, and these are many of the large national bodies such as the Smith Family, Salvation Army, Mission Australia, Relationships Australia, Australian Foster Care Association, Child and Family Welfare Association of Australia, Grandparents Australia and organisations of that magnitude. In our second major category, associate members, are those organisations which are providing, broadly speaking, family and community services at state, territory, regional and local levels. These may range from individual children’s services settings—child care centres—right through to very large state based organisations such as Berry Street in Victoria.

Senator BARNETT —I am aware that some of the members you have are faith based entities. Do you have a purpose to support both born and unborn children?

Ms Warrilow —We do not have a specific framework aside from our mission statement.

Mr Babington —I was wondering whether there were two parts to your question: one was about the independence of our mandate, would that be correct? And whether we have a mission or a religious or other affiliation?

Senator BARNETT —I have not read your mission. Does your mission cover both born and unborn children?

Mr Babington —We are concerned with children broadly. In respect of unborn children, directly speaking, it is not a policy issue that Families Australia has specifically addressed at this time.

CHAIR —The proposal in your submission is to not ignore the needs and interests of people above the age of 18. So when you see a commissioner for children and young people do you think it should be extended above the age of 18 rather than up to 17? I would be a bit confused about that because 18 is really an adult consensual age.

Ms Warrilow —Certainly there are young people who transition from care who are not successful in that transition when support cuts off at 18. We would argue that you would look at 25 for those children who were transitioning from out of home care situations. When we reflect on the forgotten Australians we are looking at adults who had very particular circumstances while they were children that have severely disadvantaged them and we would want them to fall under the remit of a Commonwealth commissioner because of events that occurred to them when they were children.

Senator HANSON-YOUNG —Thank you for your submission. It is wonderful that you have put so much time into coming up with some specific recommendations. As we go through the process of writing the report we will definitely be taking them on board.

Right at the front of your submission you specifically mention the need for the bill to explicitly relate and reflect the public health model. For those of us who are politicians and not in the health sector or directly in child welfare, could you expand and explain what you mean by that?

Mr Babington —The reference to the public health model is really something that flows from the conceptual basis of the National Framework for Protecting Australia’s Children and it parallels in many ways what we are seeking to achieve through a Commonwealth commissioner in that there ought to be 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.

What we are saying with respect to this bill is that we would like to see the Commonwealth commissioner have regard for not just the statutory end of the public health model but also the needs of children and families at the other levels, that is, the early intervention and prevention level and the targeted support level, so that we do not end up with a system where the Commonwealth commissioner is focusing entirely on a rather narrow albeit important set of interests. We want to keep the remit really at that children and family wellbeing level.

Senator HANSON-YOUNG —In the various submissions we received, a number of people—not necessarily all those we will speak to in the hearing process—have said they would like to see a particular focus on Aboriginal and Torres Strait Islander children. Another group of organisations and individuals have said that they would like a focus on children with disabilities. How do you as an organisation that represents 400-odd members and has obviously been advocating a role like this for quite some time—I have spoken for years about the fact that we need to move on this type of issue—see that we can deal with the needs of those competing interests in a way that still ensures that we have a broad scope to keep that rights based approach for all children regardless of their state, territory, abilities and background?

Mr Babington —I do not want to sound flippant but a good start would be to make it very big with an ambitious mandate in terms of the objective needs of children and families in the community. You have picked two issues, Aboriginal and Torres Strait Islander issues and issues to do with disability, which we would put a very high priority on with respect to a commissioner and an office of the commissioner having a very strong focus. In a day-to-day sense it may be that thematic approaches could be undertaken, just as we have, under the national framework, identified national priority areas. These could be staged in terms of attention by the office of the commissioner through the inquiry process. However, I think there are some themes that would be much more enduring and I know that there are those who have suggested, for example, that there ought to be an Aboriginal and Torres Strait Islander commissioner as well, or even a deputy commissioner. We are very sensitive to that argument but we have not ourselves figured out a way that acknowledges the importance of Aboriginal and Torres Strait Islander issues in the commissioner framework. I think others will be thinking about that.

Senator HANSON-YOUNG —Do you have any particular views as to whether this commissioner should be placed or housed within the existing Human Rights Commission framework?

Ms Warrilow —We have personal views but we do not have any specific views; but it should be housed in an independent entity of some description.

Senator HANSON-YOUNG —That would be your preference?

Mr Babington —It would be our preference that this be an independent statutory body. We have considered the rightful home for it, maybe within the Human Rights Commission framework, and that does present some advantages, though we cannot see why it could not be a stand-alone body. However, we do feel that it would impinge on the independence of the office if it were to be, say, integrated within a mainstream Commonwealth government department or an adjunct to that. So we are looking for it to be administratively separated and statutorily independent

Senator HANSON-YOUNG —Thankfully, I do not think anyone has argued that it should be part of an official government department. In terms of ensuring that we do not simply overlap or duplicate the work of state and territory based commissioners and guardians, I would envisage that if this role were very specifically focused on the rights based approach you would naturally have that separation of responsibilities. Of course, then you look at programs such as income support programs, homelessness and housing programs and education programs, and you start to get into welfare but from a rights based approach. How do you envisage being able to draw that line? Is it simply about the specific roles: this person does not advocate for individual child protection cases and simply always only talks about the broader issues. Somewhere that line has to be drawn.

Ms Warrilow —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.

Senator HANSON-YOUNG —Yes, exactly. They are good examples. We are already having to do that. It is just that they are not independent and they are not given much of a legal basis for the work they do. There are agreements by state governments by the minister.

Ms Warrilow —They still involve state and territory responsibilities and input, but ultimately those frameworks are sitting within a national agenda and within Commonwealth responsibilities.

Senator HANSON-YOUNG —Absolutely. But it is not like we are reinventing the wheel.

Ms Warrilow —No.

Mr Babington —To add to that, we would support the case for the office of the commissioner being able to initiate their own inquiries into matters they consider to be relevant. The bill, as we currently read it, talks about the commissioner coordinating the responses of the Australian government to, say, the UN Convention on the Rights of the Child. It seems to us that it would be at slight odds with the independence of the office.

On the plus side of that, we would see the office taking quite an assertive role in choosing issues on which it can provide critical analysis of performance of the Commonwealth; and not just to the Commonwealth but also of how arrangements are working nationally. We are trying to argue in our submission that we have seen this policy thrust, over the last three years in particular, of trying to have joined up national approaches. We see the Commonwealth commissioner as really adding to that suite of national approaches.

CHAIR —Thank you for your submission and your input; it was very useful.

[2.00 pm]