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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 Ms Budavari, a representative from the Law Council of Australia. We again have a submission from the ever-reliable Law Council of Australia. Thank you very much for that. We have numbered it 78 for our purposes. Would you like to provide us with an opening address before we go to questions?

Ms Budavari —The Law Council considers that this bill is an important step towards implementation of Australia’s international human rights obligations. It addresses significant issues in relation to the rights of children and young people in Australian society. The establishment of the commissioner’s position would complement the important functions carried out by other Commonwealth commissioners who are members of the Australian Human Rights Commission. For this reason, but also for a number of other reasons, we recommend that this committee examine the advantages and disadvantages of the commissioner being a member of the Australian Human Rights Commission rather than a separate, independent statutory officer, as is proposed in the bill.

We have also noted that the commissioner would complement the functions of existing children’s commissioners and guardians in the states and territories, although we have noted in our submission that some of those commissioners and guardians have quite limited functions, particularly in South Australia. That has been brought to our attention by the Law Society of South Australia. We do support the concurrent operation of state and territory laws relating to children’s commissioners and guardians and relating to children’s rights generally, given the particular division of constitutional responsibilities that we have in Australia in relation to children’s matters. But due to that division and due to the existing bodies we feel that the commissioner will need to focus on Commonwealth laws and really only examine state and territory laws and policies in the sense that they interact with Commonwealth laws. We strongly support any avoidance of duplication of the functions of Commonwealth commissioner with those of the state and territory children’s commissioners.

We are very supportive of the concept of this bill but we do have a number of concerns, which are outlined fully in the submission, about the drafting of certain provisions of the bill. These concerns would be largely resolved if the commissioner was established as a member of the Human Rights Commission. The provisions of the legislation applying to the Human Rights Commission would therefore apply to this commissioner in the same way that that framework applies to the Aboriginal and Torres Strait Islander Social Justice Commissioner at present. If the commissioner is not established as a member of the Human Rights Commission we do make a number of recommendations in the submission for amendments to the drafting of particular provisions of this bill.

In closing I would just like to note that since making the submission, which was dated 6 January—and we thank the committee for giving us an extension of time in which to lodge the submission—the government has announced the appointment of a full-time race discrimination commissioner. That was announced on 27 January, just prior to Australia’s appearance before the United Nations Human Rights Committee in relation to its universal periodic review.

We have also noted in the submission that the Sex and Age Discrimination Legislation Amendment Bill, which this committee would be familiar with and has provided a report on, also establishes the position of age discrimination commissioner. The point we have made in the submission is that we do have some reservations about putting the commissioner within the Human Rights Commission, because of the practice which has grown within the commission of requiring individual commissioners to carry out in effect two jobs. We have had one person acting in the roles of both race discrimination commissioner and disability discrimination commissioner. We also currently have the sex discrimination commissioner acting as the commissioner responsible for age discrimination. So we do have some concerns that if this commissioner is located within the Human Rights Commission they may pick up some other role at some stage and necessarily lose some of their focus on children. But overall we would strongly recommend that the committee give a good deal of consideration to the advantages of locating the children’s commissioner within the Human Rights Commission. That concludes the opening statement. Thank you.

CHAIR —Thank you very much. Senator Barnett.

Senator BARNETT —Thank you very much for, as usual, putting in a very comprehensive and thoughtful submission. It is appreciated. You have made a number of good points that I will not go into. But I just want to quiz you on your concerns about overlap and duplication—that has come up a few times at this hearing—and the views of the Law Council with respect to avoiding that. I note your point about the Human Rights Commission—and maybe that assists to some extent—and your point about it covering Commonwealth law. Can you expand on that to ensure that we are satisfied that there is not going to be duplication and extra costs?

Ms Budavari —This is a very difficult question given our constitutional framework and given the particular funding arrangements between the Commonwealth and the states in relation to some of these matters. If you take family law for example, there is significant overlap with child protection law and domestic violence law, which are governed by the states and territories, and it is difficult to unpick that interaction. I cannot really add anything other than the suggestions we have made in the submission that certain provisions of the bill be redrafted so that they say the commissioner can examine all of those Commonwealth, state and territory laws and policies but that this Commonwealth commissioner has a particular focus on the Commonwealth laws and policies and how they interact with state and territory laws and policies. There are already provisions within the bill which encourage interaction between the Commonwealth and the state and territory commissioners. We would support that interaction, but it is difficult to see a way of drafting that so prescriptively that the necessary flexibility that is going to be required is not done away with.

Senator BARNETT —You normally have some very particular and thoughtful advice for our committee. I see this as an issue. I do not know whether you heard our first witness this morning, Ms Fraser, talk about the twice-a-year meetings between state and territory commissioners.

Ms Budavari —I was not here but I am aware that they do have those meetings.

Senator BARNETT —Obviously they sound to be most useful and meritorious meetings which provide feedback to the states and territories. From time to time they interact with the Commonwealth. Frankly, their role in any event is very comprehensive at state and territory level, it would appear, based on the evidence, on the matrix they put to us and on the remarks she made this morning. Do you think there is a way of helping cover the base by formalising those twice-a-year conferences or perhaps more frequent conferences, to bring issues to the Commonwealth’s attention and then to the attention of states and territories? Is there anything there which you think could be done?

Ms Budavari —Certainly there are provisions in the Human Rights Commission Act which do not directly  deal with the Australian Human Rights Commission’s relationship with state and territory bodies which also operate in the area of anti-discrimination law. There are provisions within the Australian Human Rights Commission Act relating to the convening of meetings by the president of that commission. So potentially there is the prospect of drafting something which would require some form of regular meeting between the Commonwealth and the states and territories. I am not sure whether there would need to be complementary legislation within the states and territories or whether it could be left as a voluntary commitment by those commissioners. We could certainly give some thought to that.

Senator BARNETT —If may want to take it on notice and give thought to it. Have you considered the cost involved to resource such a commissioner at the Commonwealth level and given any estimates to it?

Ms Budavari —We have not really thought about the cost in any detail but an implication from what we are saying in relation to looking seriously at the advantages of locating the commissioner within the Human Rights Commission is that presumably there would be a cost saving—rather than setting up a completely new office. I think you heard this morning from Mr Roy from the ACT.

Senator BARNETT —No.

Ms Budavari —Certainly in the ACT the children’s commissioner is located within the overall ACT Human Rights Commission. They have a discrimination commissioner, a commissioner for community services and people with disabilities and the children’s commissioner all located within one office. That appears to allow them to share staff and resources.

Senator BARNETT —What do you say to the argument, ‘We’ve got enough commissioners as it is. We already have an Indigenous commissioner, a disability commissioner and state and territory children’s commissioners. How many commissioners do we need in terms of red tape and costs to the taxpayers?’ What do you say to taxpayers?

Ms Budavari —I think that referencing something like the National Human Rights Consultation, which had extensive consultations around the country and engaged in turn in consultation in a myriad of forms, certainly concluded that the most significant issues relating to children, particularly at the Commonwealth level—

Senator BARNETT —Of course their main recommendation for a human rights act was dropped by the government.

Ms Budavari —Yes, that is the case, but a lot of the other recommendations were incorporated into the human rights framework that the government announced almost a year ago. Really, the point of referring back to that consultation is that there were significant concerns raised by a variety of contributors to that about the position of children and young people in Australia, and particularly vulnerable children, as was discussed with the previous witness—children with disabilities, children who have been through care and protection, Indigenous children and children of asylum seekers.

Senator BARNETT —Could I just put it to you: we already have a commissioner for Indigenous affairs, so why do we need a commissioner for Indigenous children, for example? Isn’t there an overlap with these roles and responsibilities? In a separate bill, of course, just in the last few weeks, we were looking at the appointment of an older person’s function as well. How far do we go with these appointments?

Ms Budavari —It could be argued that the commissioner who currently has responsibility for age discrimination should look at the situation of children. My understanding is that she in fact does, and she deals with complaints relating to discrimination against children and complaints relating to breaches of rights under the Convention on the Rights of the Child. She is also currently doing another massive job in relation to sex discrimination. That situation may be eased with the appointment of a full-time age discrimination commissioner, but I think it is also fair to say that, as commendable as the job that is done by each of those individual commissioners within the Human Rights Commission is, there is still an enormous amount of work to be done, particularly in addressing systemic issues. Because each of the commissioners, other than the Aboriginal and Torres Strait Islander commissioner, has a responsibility for dealing with complaints under each of the individual discrimination acts, they necessarily spend a fair bit of their time on that particular function. As we read it, the purpose of this bill is to establish something which looks much more at systemic issues, has an overarching mandate to consider the situation of children and young people in Australia, makes recommendations and takes necessary action. The Law Council’s view is that there is an established need and that that need should be filled.

Senator HANSON-YOUNG —What is the Law Council’s view on Australia signing conventions and then not following through with the things that we have agreed to do—for example, signing the Convention on the Rights of the Child required us to establish a children’s commissioner, and the UN has of course questioned Australia on that numerous times? At what point do we say: ‘We will sign up. We will agree to this part but not that part?’ What is the Law Council’s view on that?

Ms Budavari —The Law Council has a fairly consistent view on this, which is that any convention obligations should be implemented into domestic legislation fully. We have contributed to reports to a number of those UN committees which make that point, and we make that point to ministers of governments of both persuasions regularly.

Senator HANSON-YOUNG —In relation to the support for a children’s commissioner and the various roles it would take, it was a unanimous recommendation of the forgotten Australians report that was handed to the parliament a year or so ago. Rather than getting caught up with taking over the jobs of the state and territory commissioners—because that is not the purpose of it at all—do you see the value-added role of a federal children’s commissioner as, in some ways, a better check for government to avoid disasters happening down the track?

Ms Budavari —There is certainly a compelling case for an oversight role rather than just an individual complaints based mechanism.

Senator HANSON-YOUNG —Which is primarily what the state and territory commissioners or guardians do, don’t they? They are very much based on individual cases.

Ms Budavari —I think the situation in the states and territories varies quite considerably, but a number of them do have a strong focus on dealing with complaints.

Senator HANSON-YOUNG —So you are saying that the role of a national children’s commissioner would need to be broader if it was to value-add?

Ms Budavari —Yes.

Senator HANSON-YOUNG —What is the Law Council’s position or view on the current situation of the guardianship of unaccompanied minors in immigration detention?

Ms Budavari —I think our position is reflective of the philosophical position behind the provision in this bill: the Law Council does see that there is a conflict of interest for the minister in his role as the guardian of unaccompanied minors and also as the decision maker under the legislation. This is also a very difficult area to come up with an alternative. In our submission we have noted that a number of other submitters have suggested that perhaps the Minister for Families, Housing, Community Services and Indigenous Affairs may be a more appropriate guardian given that she does not have that same responsibility as a decision maker, or that state and territory ministers for child protection would be more appropriate guardians.

The difficulty with both of those proposals is that the Minister for Families, Housing, Community Services and Indigenous Affairs has an enormous portfolio already, although it could be said that some of the work of that department would be quite relevant to the care of children. For state and territory ministers with responsibility for child protection, the difficulty is that those ministers and departments are quite well known as being overwhelmed with the amount of child protection work that there already is at the state and territory level. They would need to be further resourced to provide a role in relation to unaccompanied minors. So it is a very difficult issue, but the bottom line for the Law Council is that we do see that it is currently a conflict of interest for the minister.

Senator HANSON-YOUNG —Yes, the current situation is not tenable.

Ms Budavari —We note that the department has also made a submission to your committee on this bill in which they point out that the minister does delegate a number of his responsibilities to some state and territory agencies and to an organisation called Life Without Barriers. We have had some concerns reported to us about some of the focus of Life Without Barriers, and we are currently in discussions with the department about that particular issue. It is a difficult issue.

Senator HANSON-YOUNG —But with regard to the other rights, in relation to pinpointing the vulnerabilities of various different groups of children and young people within Australia, you are also advocating that asylum seeker children or children of asylum seekers fit into that high-risk, high-needs group.

Ms Budavari —Yes. I think you only have to look at recent reports from the Human Rights Commission, previous reports by the Immigration Ombudsman and a range of reports that indicate that those children are particularly vulnerable. Whatever extra coverage can be given to the protection of those children, we would support.

Senator HANSON-YOUNG —I think that is all my questions.

CHAIR —Before you go—I think Senator Hanson-Young covered a fair few of mine—I just wanted to ask you whether you think the children’s commissioner should look at people up to the age of 17 or whether that should be extended to 24—young people versus youth, I guess.

Ms Budavari —We have taken the position in the submission that it should be up to 18, which coincides with the Convention on the Rights of the Child and in fact with most state and territory legislation other than particular legislation in Queensland that allows children over 17 to be held in adult prisons, which we have a particular concern about. We have not really addressed that issue of looking at young people over the age of 18. We do not profess to have any particular expertise in that area, and there are a number of other organisations that do who have made that submission. I suppose we see that there is a difficulty if this bill is based on compliance with the Convention on the Rights of the Child, which clearly states up to 18, and then there may be a difficulty with the constitutional basis for the bill if it is implementing that convention. By the same token, there appear to be some compelling arguments for someone to have some responsibility to look at the situation of young people, particularly those who move out of perhaps immigration detention arrangements or out of the care and protection system at the state and territory level and, from one day to the next, are left without support. As to whether that is solved by changing the definition of children and young people is another issue.

CHAIR —That is all I have. Ms Budavari, thank you. Thanks for your submission and making your time available and for coming up a bit earlier than we anticipated today.

Committee adjourned at 3.33 pm