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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
30/03/2011
Commonwealth Commissioner for Children and Young People Bill 2010

CHAIR (Senator Crossin) —I declare open this public hearing for the Senate’s Legal and Constitutional Affairs Legislation Committee’s 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. The committee has received 93 submissions for this inquiry. All submissions have been authorised for publication and have been made available on the committee’s website. I want to remind all 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 to a committee. The committee prefers all evidence to be given in public but there is an opportunity if you need to go into camera, you would just need to request that of the committee and we will arrange it.

I now formally welcome representatives from Save the Children Australia. We have a submission from you which we have numbered 57 for our purposes, so I am going to invite you to make an opening statement and then we will go to questions.

Ms Schulze —Thank you for the opportunity to provide a submission to this inquiry. Save the Children Australia is a member of Save the Children International. We are the world’s largest independent child rights organisation and we work in more than 120 countries around the world. We were established in Australia in 1920 and we currently have our head office in Melbourne, with offices and staff in every Australian state and territory. Save the Children strongly supports the establishment of a Commonwealth commissioner for children and young people.

Children are a vulnerable group who require special protection from adults, including government. Arguably, children are more affected by the actions of government than any other group in our society. Education policies dominate their working hours and public healthcare policies target their physical and mental development. Large numbers of children and young people have contact with both the child protection and the juvenile justice systems, yet children have no vote and little influence in the institutions that govern their lives. In many ways simply to be young is to meet the definition of social and political exclusion. For this reason a number of countries around the world and a number of Australian states and territories have recognised the need for special measures to protect children’s rights and it is time for the federal government to also acknowledge the need for such protections and to establish a national commissioner.

As a signatory to the UN Convention on the Rights of the Child—CRC—Australia has committed itself to respect, protect and fulfil the rights of children and young people; however, despite being a signatory for more than 20 years, Australia has still not translated many of the rights of the CRC into national law. In 2005 the UN committee responsible for monitoring states’ obligations under the CRC expressed concern regarding Australia’s lack of a national commissioner for children’s rights. It was also a recommendation following Australia’s Universal Periodic Review by the UN Human Rights Council in January of this year. The establishment of a commissioner would clearly be a significant step forward in meeting Australia’s international legal obligations under the CRC.

More broadly, Save the Children believes that a national children’s commissioner could help improve the lives of children in a variety of ways: through policy and law reform, independent inquiries, research, public education and awareness. The role could provide national leadership and could support coordination and consistency in policies and laws among government departments and organisations working with children.

Whilst a number of our states and territories already have a form of children’s commissioner or guardian, they vary in their roles and powers. They do not have the mandate to deal with children’s issues at a federal or international level and they have no coordinating body or authority to drive national consistency. Most significantly, they do not cover all children, notably those in immigration detention.

A national children’s commissioner could provide an independent voice for children and ensure that their views on issues are taken into account. This would not only improve the quality of discussion and decision making at a national level, but would also support children to become active and engaged citizens in our society. A commissioner could represent and be a national advocate for children, especially for vulnerable groups of children such as those with disabilities, Aboriginal and Torres Strait Islander children and children in immigration detention.

Importantly, a national children’s commissioner could also provide a child friendly complaints mechanism to ensure that children have an effective means of redress when their rights are violated. A commissioner could also monitor the welfare and wellbeing of children in Australia and report and make recommendations to parliament to improve lives.

Save the Children has a number of specific comments in relation to the current draft of the legislation and these are articulated in full in our written submission. Briefly, we believe that in order for the office of a national children’s commissioner to be effective it must: (1) be independent from government; (2) have statutory authority, including security of tenure; (3) have sufficient funding and human resources; (4) possess broad powers, including the power to receive and investigate complaints of breaches of children’s rights, the power to issue reports freely and publicly and the power to take legal action on behalf of children in appropriate circumstances; (5) have a broad mandate, including the power to determine its own agenda; and (6) be accessible to children and young people; (7) report directly to the federal parliament. Finally, it should cover all children in Australia and its territories, regardless of citizenship or residency.

We would like to see the legislation modified to require that the commissioner pay special attention to the needs, interests and rights of particularly vulnerable groups of children, including Aboriginal and Torres Strait Islander children.

In relation to children in immigration detention specifically, we believe that the commissioner should not act as the legal guardian of unaccompanied children and young people who arrive in Australia. We believe such a role would conflict with the commissioner’s function to independently monitor, assess and report on their wellbeing. We believe that children in immigration detention would be better served by having the commissioner monitor the guardian, rather than be the guardian.

In conclusion, Save the Children believes the establishment of a national children’s commissioner is an important and long overdue step to build a society that both values and protects the rights of children and young people. This is a role that the majority of Australians also support. In a survey of nearly 1,200 people conducted by Save the Children in November 2009, 78 per cent of respondents wanted to see a role in the national capital for a person who stands up for the rights of children and young people. We urge the federal government to move to establish a commissioner as soon as possible. Thank you and we are happy to take any questions.

CHAIR —Thank you very much. We will go first to Senator Barnett for questions.

Senator BARNETT —Thanks very much to Save the Children for your work and for your submission. It is a very comprehensive proposal you have put to us. I am concerned about the issue of overlapping and duplication, which came up in evidence yesterday. The states and territories all have a relevant commissioner, as you know, so how do we avoid that?

Ms Schulze —The states and territories have a variety of commissioners and guardians, all of whom have different roles, mandates and powers and none of whom have the power or mandate to intervene in issues at a federal or international level. We believe that, as with many other jurisdictions—for example, schools, where we have schools ministers and a federal schools minister—the role of a federal children’s commissioner would be one of coordination, driving for consistency and for a bar that is international best practice consistent across the states rather than the patchwork and inconsistent coverage for children that we have now.

Ms Cardinal —In terms of national policy and national reform, states and territory commissioners do not have the authority or the mandate to address children’s issues within those avenues. A national children’s commissioner would certainly play that role. We would look at a national children’s commissioner as being a national advocate and really supporting the work that state and territory commissioners are doing—supporting them and coordinating them, so very much working in cooperation.

Senator BARNETT —Should that focus only on commonwealth law and commonwealth policy?

Ms Cardinal —Commonwealth law and Commonwealth policy, but we think a national children’s commissioner would be able to have oversight of what is going on in the states and territories. Given that Australia has signed up to the Convention on the Rights of the Child, it applies to Australia nationally. So while we appreciate that certain areas of jurisdiction fall within states and territories, the federal government has an international legal obligation to uphold the Convention on the Rights of the child. We would look at the national commissioner as playing that role and looking at best practice among the state and territory commissioners. Right now my understanding is that they have informal communications but there is no peak body that can have an oversight and say: ‘Okay, we see that what WA is doing is probably the best practice in juvenile justice, for example. Let’s see if we can have that shared across all states and territories.’ That is very much a cooperative role; we certainly are not advocating for any duplication.

Senator BARNETT —Yesterday we heard about their informal meetings twice a year, where the commissioners get together and report back to their relevant state ministers and authorities and the Commonwealth authority as appropriate. What do you put to the argument that we have a dearth of commissioners and now we are about to have another one. We are soon to have a commissioner for an age discrimination commission, I suspect, and we have race discrimination and disability discrimination commissioners. What do you say to the argument that we just have so many commissioners and one extra is really not going to help—particularly in the area of young people? You want to focus on perhaps Indigenous young folk, vulnerable people and vulnerable children, and people with kids with disabilities, but we already have those commissioners in place. What do you say to that argument?

Ms Cardinal —We are both keen to answer that.

Ms Schulze —I would reverse that and say if every other vulnerable group in our society has a commissioner to represent their rights, why not children as well? We can put together a laundry list of—

Senator BARNETT —Should we have a commissioner for every vulnerable group?

Ms Schulze —I think that children are a particularly significant and large group of vulnerable people who have interaction with government almost daily, as we said, with education and health. There are large numbers interfacing with the child protection and juvenile justice system. They are a group who are currently excluded from having a specific commissioner at this stage to stand up for their rights. It would not make sense to have a representative for all of the other groups and not for children. It does not make sense.

Ms Cardinal —Further to that, while we appreciate that certain commissioners who exist within the Australian Human Rights Commission cover certain issues for children, they cannot cover all issues—particularly issues to do with education and health. Children are only able to make a complaint to the Australian Human Rights Commission on the basis of age, race and sex discrimination—there are huge gaps. We look at a children’s commissioner as being able to comprehensively take the Convention on the Rights of the Child and ensure that children have got a means of redress across all of the areas that impact their lives.

Senator HANSON-YOUNG —Thank you for your submission and for thinking in further detail about where the bill needs to be tweaked. The first draft of the bill was done in consultation with Save the Children originally, so it is good to see the process moving forward. One of the things that I was keen to explore was at what point of intervention do you think the commissioner should take when it comes to federal legislation or the federal government undermining the obligations set out in the UN Convention on the Rights of the Child? Are there specific areas at the moment that you see are being undermined and need to be addressed as examples of where we are falling through the cracks?

Ms Schulze —Do you mean where we are currently in breach of our obligations under the CRC?

Senator HANSON-YOUNG —Yes.

Ms Schulze —The first and most obvious example of that is children in immigration detention. That is a clear breach. The Australian Human Rights Commission, as well as other bodies, has highlighted that breach and I think it is generally understood that it is a breach. There are other areas that are not as topical or political where we have a lack of consistency and have fallen well behind world’s best practice because we do not have a champion for children’s rights at the federal level.

One of those issues is corporal punishment. Corporal punishment against children in all settings is an issue of international significance. A number of countries around the world have banned corporal punishment against children in all settings, including the home. But the majority of countries around the world have banned corporal punishment in schools. In Australia we have not banned corporal punishment in schools. A number of states have banned it in schools and a number of states have banned it partially in government schools and, then, in areas like the Northern Territory it is not banned by legislation at all; it is banned by policy.

That is an example of where we have fallen well below best practice. Children who live in one state are treated differently from children who live in another state and their rights are differently infringed, depending on where you live. That is an area where a national children’s commission could certainly intervene, be aware of world’s best practice, be driving for world’s best practice at a national level and be trying to get consistency among the states.

Ms Cardinal —I would also add something, particularly focusing on the article 12 of the Convention on the Rights of the Child, which is the article dealing with child participation. It says that state parties will endeavour to listen to children in decisions that impact their lives. We tend to do that a bit better in the court system. In the political arena we really do not. So much of policy and so much of legislation does impact children and I think there is still this notion that they do not necessarily have something valuable to contribute, which we obviously disagree with. We think that that legislation and policy would be improved by incorporating children’s voices whether it is in urban development to ensure that there are going to be playgrounds and child-friendly spaces or whether it is in the arena of parental leave in terms of not just what is best for a mother or a father but what is best for that child within the first years of their life. It would really be putting that article into practice.

Senator HANSON-YOUNG —Do you have a view as to whether the commissioner should be housed within or outside of the existing Human Rights Commission?

Ms Cardinal —We have been discussing this. If it would make sense to have it in the Australian Human Rights Commission then we support that. We think that it probably has more to do with the detail. As long as the commissioner has adequate resources, adequate funding, a proper mandate and wide powers—if all of those characteristics are able to be encompassed within the Australian Human Rights Commission, then so be it. If it would in any way impact on their independence or their ability to perform the role then we would be advocating for a role very much outside of the Australian Human Rights Commission. So it is a bit where it makes sense and it really comes up in terms of the detail.

Senator HANSON-YOUNG —Could you outline for the committee and for the sake of Hansard what other countries that are signatories to the Convention on the Rights of the Child have fulfilled the obligation to introduce such a position.

Ms Cardinal —Absolutely. There are a number of them. Norway was the first country to create a children’s ombudsman, in 1981. They were very successful in terms of extending maternity leave for mothers and in terms of banning corporal punishment. Children’s commissioners have also been introduced in Northern Ireland, England, Belgium and New Zealand, which is a really good example in our area of the world. There has been a children’s commissioner in New Zealand for almost 20 years—I think it dates back to 1984. A number of countries have indeed looked at having a children’s commissioner. It is probably one of the best ways to implement the Convention on the Rights of the Child, recognising that, while all portfolios and areas of government will come into contact with children, they are sometimes overlooked. Having somebody at a national level that plays that pivotal role is probably the easiest way to implement the convention. Those are some of the examples.

Senator HANSON-YOUNG —Has Australia copped any criticism from the United Nations because we have not moved on implementing such a position?

Ms Cardinal —Absolutely. In 2005, in Australia’s Concluding Observations—these are the most recent Concluding Observations from the Committee on the Rights of the Child, which is the organ responsible for monitoring the implementation of the Convention on the Rights of the Child—concern was expressed that there was no commissioner with a specific mandate for children’s rights. Also, in relation to the Australian Human Rights Commission, it expressed concern that its funding was reduced over the years. More recently, the Human Rights Council, which is a relatively new United Nations body, reviewed Australia—it was the Universal Periodic Review of Australia’s human rights record. Again, it was highlighted that Australia is lacking both a national children’s commissioner and a national policy framework for children. These are issues that are continuing to come up again. Australia will be reviewed by the Committee on the Rights of the Child in the next couple of years—I think it is either next year or the year after—and I am certain that this will be an issue that will come up again.

Senator HANSON-YOUNG —It would be good to get one in place before then to give you something positive to report.

Ms Cardinal —Absolutely. It would be a significant step forward.

CHAIR —In your submission you tell us that you conducted a survey of 1,200 people in November 2009. Were they members of your organisations, or just from the broader community?

Ms Schulze —It was an online poll conducted by a commercial research company—an Omnibus poll. So it was a number of questions to the community at large.

CHAIR —And 78 per cent of those 1,200 believed that there should be somebody like a children’s commissioner?

Ms Schulze —That is right. We did not use the moniker, National Children’s Commissioner; we said a person who would stand up for the rights of the children.

CHAIR —Senator Hanson-Young asked a question about whether or not it should be in the Human Rights Commission. There has been some discussion from other submitters about the age and whether it should be extended up to 24. Your submission suggests that it should stay in line with the definition under the Convention on the Rights of the Child, which is up to 18. Is that right?

Ms Schulze —Yes. We suggest for consistency with the Convention on the Rights of the Child that we should use the same definition of a child, which is under 18. We also believe that there is a risk that, if the commissioner’s focus is extended to include youths up to the age of 25, the focus may shift to all of the issues that are significant with that group and detract from a focus on early childhood and young children. We also recognise that there are significant issues and the day someone turns 18, particularly if they have been in contact with government in one form or another, to immediately say that you are no longer afforded the protection of the children’s commissioner. It would be a challenge and perhaps unfair, so we are able to be swayed.

CHAIR —Perhaps the new age commissioner would kick in there. I do not know what the mandate there would be. Given our inquiry into that piece of legislation, it does not specify just seniors or senior citizens.

Ms Cardinal —We recognise that you have to draw the line somewhere. So, for the focus of the position, and based on the Convention on the Rights of the Child, as well, we draw the line there.

Ms Schulze —We can have a very clear focus on upholding Australia’s obligations under the CRC if the definition is consistent and the focus is on children under 18.

CHAIR —In section 9 of your submission you have outlined quite a range of modifications to the bill. They are slight, but they outline very succinctly what your view is about just tweaking it a little bit or broadening some of the aspects or just defining them succinctly. Thank you for your evidence.

 [9.29 am]