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

CHAIR —I welcome Mr Pocock, the representative of Berry Street, to the hearing. I am an ex-Melbournian, so I know about Berry Street. We have your submission, which we have numbered 74 for our purposes and for the website. I invite you to make a short opening statement and then we will go to questions.

Mr Pocock —Berry Street welcomes the opportunity to participate in this hearing and to comment on the bill. From the outset, we would like to emphasise that we support in principle the establishment of a national commissioner for children and young people, so we commend the Greens for bringing forward a bill for that purpose. Having said that, however, there are a number of aspects of the bill which we believe could be improved to ensure that the model for the commissioner is the most effective model in protecting the rights and needs of Australia’s children and young people. Some of the areas where we believe the model can be improved are as follows.

Firstly, we suggest extending the definition of young people proposed by the bill to the age of 25. Berry Street is aware and concerned that young people between the ages of 18 and 25 are a group within the Australian community for whom there are significant transitional issues as they move from dependence to independence. It is an area where Australia certainly has a long way to go in providing the right policy frameworks and assistance to ensure that all young people in that age bracket make a successful transition to independence. So we believe the role of the commissioner should be extended to cover young people in that age bracket and should have a focus on matters that could assist them to make that transition to independence.

Secondly, we believe that the proposed commissioner would be better located within the Human Rights Council of Australia and that locating the commissioner still with a level of independence but within that structure would provide opportunities for the commissioner to work within a broader human rights framework. It would enable the commissioner to work collaboratively with the other existing commissioners within that structure and take an integrated and team approach to how we progress the rights of children and young people.

Thirdly, we believe there are a number of areas where the bill introduces some possible conflicts within the role and that these need to be clarified. Specifically, we refer to section 9(e), where the bill proposes that in some circumstances the proposed commissioner may act as a guardian of children and young people. In relation to section 25, which refers to the preparation of Australia’s annual report to the UN Committee on the Rights of the Child, we believe that those two specific functions create a conflict within the role. We believe that it is very important that the role has the capacity to independently comment upon and monitor the Australian government’s compliance with the UN Convention on the Rights of the Child and that having the commissioner take on the role of preparing Australia’s report does not make sense in terms of the desire for the role to have a level of independence. We think it would be far more productive for them to play a coordinating role working with the non-government sector, children and young people, and other interested parties in preparing a complementary or alternative report to the UN in relation to Australia’s compliance with the convention.

In relation to the matter relating to the commissioner acting as a guardian for children and young people, our concerns about that relate to the demands that that role may place on the commissioner. If there is a need for there to be a guardian in particular for unaccompanied minors and refugee children and young people then our view would be that the Commonwealth should establish such a guardian for those children and young people and not have that function absorbed within the functions of a commissioner who is supposed to be independently monitoring the performance of the Australian government and other governments in relation to securing the rights of children and young people. It just seems to us that they would have the dual role of providing those rights to children and young people and monitoring whether that is occurring. That, to our reading, is a conflict of interest.

Lastly, in relation to proposed section 26 around annual reports, that section highlights a significant weakness in the model as proposed compared to the model that we have within the Human Rights Council of Australia and their existing commissioners. Specifically, the annual report that the commissioner is required to prepare focuses mostly on the operations of the commissioner’s office and does not specifically and directly speak to the extent to which children and young people in Australia enjoy and exercise their human rights. We would contrast that with section 46C of the Australian Human Rights Commission Act, where it details the report that has to be submitted to the minister after 30 June each year in relation to the human rights enjoyed by Aboriginal people. That framework and that way of establishing the annual reporting function is a much clearer and more useful way of doing that than what proposed section 26 of this bill sets out. Those would be our summary comments.

CHAIR —Thanks very much, Mr Pocock. I am going to start. In relation to proposed section 9E, I think you make a fair point there. What you are saying is that you cannot actually be the legal guardian and the person who oversights the rights and welfare of those children at the same time. Is that about it?

Mr Pocock —Yes, that is essentially our point. Certainly our experience in child welfare and protection at the state level is that we see on a daily basis how that can create difficulties. We see scenarios where the Secretary of the Department of Human Services in the Victorian context is the guardian of children and young people in care and is required to act in their best interests. That same department is also the monitoring body in relation to standards of care and practice for out-of-home care. We see many examples of where those two roles conflict. We think it is important that those roles are separated.

CHAIR —Also, on the preparation of the government’s report on the United Nations convention I think I made a point to a witness this morning that it is usually the government that prepares that report and then it would be organisations like the Human Rights Commission that would critically analyse that report. Do you see the children’s commissioner having that role—analysing and being critical of the report or even substantiating it and endorsing it rather than writing it itself for the government?

Mr Pocock —Absolutely. It just does not seem to make sense to us to on the one hand argue that this commissioner is to be independent of government and independent of the minister and then require them to prepare Australia’s report to the UN in relation to the Convention on the Rights of the Child. We note that the legislation allows the minister to provide what other reports they wish to provide to the UN, as well. But that could possibly see a scenario where the UN receives two reports from Australia both purporting to represent Australia. So we would certainly prefer the model of the Australian government having the right, and in our view it should provide the report to the UN on these matters, as it does on other matters. But it should be open to the report they provide being publicly scrutinised. We believe that the proposed commissioner could play a useful role in that regard, including in consulting with children, young people and others, to provide some scrutiny of what is put forward by the Australian government.

Senator HANSON-YOUNG —Thank you for your submission. The points that you have raised are not particularly different to the key issues raised by other people who support the concept but want the bill tweaked, so they are all good ones. I want to get you to tease out the proposed definition of children and young people where in your submission you specifically go into the differing age determinations that the United Nations actually has—the idea of what the convention says as under 18, but the United Nations refers to 24 for young people. Could you explain that and why you think that it is an important aspect that we should be taking on board.

Mr Pocock —Focusing firstly on the UN definitions, my understanding is that, for the purposes of the Convention on the Right of the Child, the UN defines children to be people up until the age of 18. We would agree with that. It is also been the practice within the UN to define—and they use the term youth rather than young people—as people between the ages of 15 and 24 years of age. My experience, both in my time at Berry Street and also in previous roles when I was the CEO of AYPAC, the nation youth peak, in the 1990s, is that the accepted convention across all state and territory governments and the Commonwealth government was that the definition of ‘young people’ was people aged 15 to 24 years, inclusive. Most youth policy developed by jurisdictions in Australia frames youth policy in that way.

In terms of why it is important, beyond the definitional reasons, I would particularly point to issues in the labour market, in access to employment and education and in relation to health. Young people, and when I say young people I am working with my definition of people aged 15 to 24 years of age, are the only group in the Australia community, including Aboriginal people, whose health status has declined over the last three decades. In a range of policy areas, particularly in relation to labour market, education and employment policy, we have consistently presumed that fundamental policy settings such as promoting school retention and higher levels of achievement in secondary education will make a significant difference to young people’s employment prospects, yet the evidence says otherwise.

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For more than two decades in Australia we have been pursuing policy settings in relation to the needs of young people around securing their long-term future by promoting much higher levels of school retention; yet 20 years down the track our school retention rates are virtually no different than they were in the early 1990s. I would highlight that as an area where we have a group within the Australian community who suffer significant disadvantage in terms of making that transition to independence.

Government persists with a range of policy settings which clearly are not working and which have been tried and re-tried without much input from or consultation with young people themselves and they continue to fail. We would argue that it would be appropriate for the national commissioner for children and young people to have a broader mandate that extends across young people up to the age of 24 years inclusive and that the commissioner have the capacity to focus on some of these critical areas of public policy around which we have not made significant progress in the past two decades.

Senator HANSON-YOUNG —I would like to go back to the comments that you made around the unaccompanied minors in immigration detention and the reference in the bill to the commissioner being a guardian for those. I take the point that you have raised; however, I also consider the current situation to be an even more extreme set of circumstances of conflict, where we have the immigration minister being the person who decides whether an individual is detained, their conditions of detention, how long they are detained for, what legal support they get, what other type of support they get, whether they are allowed to go to school or not. All of those decisions are made by the immigration minister, who, under the current legislation is also meant to be the person advocating for their welfare and their rights. If this is not the way forward, what would you suggest should happen?

Mr Pocock —To me, the scenario you have described is of a minister acting as the legal guardian of these children and young people but not doing a very good job as the guardian of those children and young people. That is how I would summarise what you have just put to me—and I think we would agree with it. The issue is to be clear about who the guardian of these children is and to be clear that the performance of that person as the guardian of those children and young people will be subjected to rigorous independent scrutiny to ensure that those children and young people, like all other children, enjoy their rights under the UN Convention on the Rights of the Child. We think that the way to arrive at that position is to make clear that the minister is the guardian of these children and to make clear that the role of the commissioner is to scrutinise the performance of the minister in acting as the guardian of these children.

Senator HANSON-YOUNG —Yet, of course, his primary role is to executive the functions of the Migration Act—which is to detain them, first and foremost.

Mr Pocock —That might go to the adequacy of the Migration Act to require of the minister that they appropriately fulfil a guardianship role in relation to these children and young people.

Senator HANSON-YOUNG —I would also pick up the other comments that you make around the relationship of this particular role to refugee children and young people. You specifically talk about ensuring that this is about not just about the rights of unaccompanied children but also those who arrive with family. Could you just expand on that for me?

Mr Pocock —In relation to that, Berry Street is quite simply expressing a concern that refugee children and young people are a particular group of children and young people in the community who have suffered significant disadvantage prior to their arrival in Australia and require particular measures, approaches and support to be able to make a successful transition to adulthood and to enjoy the benefits of residency and citizenship of Australia. I suppose it sits within the context of us arguing that the bill should specifically reference a number of groups of children and young people, given we know that these groups of children and young people are disproportionately overrepresented in child protection, in unemployment statistics, in relation to poor health outcomes et cetera. We want the Commissioner for Children and Young People to focus where the highest levels of need are.

I suppose I would describe it as a weak signal, but something we picked up from the bill—and we are not quite sure that it was intended—is that there seems to be a lack of focus on the hard end of social policy and on the particular groups of children and young people who most need a commissioner for children and young people looking out for them. We would say that those three groups of young people and children are Indigenous children and young people, children and young people who have been in the care and protection system, and refugee children and young people.

Senator HANSON-YOUNG —A fourth to add to that, which has been argued in a number of submissions, is children with disabilities.

Mr Pocock —Yes, we would certainly concur with that.

Senator HANSON-YOUNG —I do not think that was a signal that was deliberately put in the bill, but I take your point that specifically identifying the various groups might be a good way of sending a clearer message, even if it were to be in the objects of the bill, perhaps.

Mr Pocock —Yes.

Senator HANSON-YOUNG —Overall, though, you are in support of the establishment of a children and young people’s commissioner; you just want some of these things tidied up. How do you argue that the commission should be under the framework of the existing Human Rights Commission? Some people are arguing strongly that it should not. They believe that it actually needs to be independent of the commission because the rights of children, whether or not they overlay into the other rights represented by the Human Rights Commission, are so distinct that they would not want them to be weakened.

Mr Pocock —I will start with why we think it should sit within the commission and then I might take a moment to try to answer that query or criticism that has obviously been raised. Our sense—and it is not much more than a sense—would be that locating the commissioner within a broader framework and a broader organisation where this is the core business provides opportunities for collaboration and an integrated approach to how we advance the rights of children and young people in Australia. Certainly all of the existing commissioners within the existing Australian Human Rights Commission already have a responsibility to children and young people. In his role, Mick Gooda has a very clear responsibility and a very clear commitment to the rights and needs of Indigenous children. It just seems to us that there is a logic in ensuring that that is integrated. Certainly we agree that, if the Commissioner for Children and Young People were separate to the commission, it would not mean that the model would not work, it would not mean that we would not support the model and it would not mean that the model would not achieve many things. But in our view the optimal model is to locate it within the Australian Human Rights Commission.

In terms of the question of overlap, our view would be that the overlap already exists. There is already overlap in all sorts of UN protocols that deal with human rights. Sticking with the case of Aboriginal and Torres Strait Islander children, they enjoy rights to a life free of racial discrimination. They also enjoy rights as children and young people. So I am not sure that the question of overlap between different human rights instruments provides us with a rationale about where we locate this commissioner, one way or the other.

CHAIR —Thank you, Mr Pocock. We have exhausted our questions for you today, but I thank you and Berry Street for providing us with a submission and for your availability this afternoon for our inquiry.

Mr Pocock —My pleasure, and thank you for the opportunity to participate.

[3.06 pm]