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

CHAIR —Welcome. We have received your submission, which is numbered 53. Would you like to make a short opening statement?

Mr Hytten —Thank you for having me. Essentially, SNAICC supports the introduction of the Commonwealth Commissioner for Children and Young People Bill. The impetus for the national children’s commissioner came as part of the National Framework for Protecting Australia’s Children 2009-2020. SNAICC has been advocating for the establishment an Aboriginal and Islander children’s commissioner for a number of years. We believe that the complexity of issues facing Aboriginal and Torres Strait Islander children requires a special attention of someone who is independent of the government of the day and also independent of the bureaucracy, which obviously has an obligation to the government of the day. One of the key issues is the need to overcome intergenerational disadvantage faced by Aboriginal children and I guess that comes with a 250-odd year history since colonisation. The need for a commissioner is reflected by the need for someone to be monitoring and evaluating key areas of disadvantage. Various governments do various things but an independent person doing that is also, I think, necessary.

We need to monitor the health, well-being and care for Aboriginal and Torres Strait Islander children and young people, to ensure that the policies and systems being implemented uphold the importance of culture and the engagement of children with the processors designed to protect them, to maintain a specific focus on children’s issues within the context of Aboriginal families and communities and I guess that is also in the context of the families and communities being important. We cannot look at children as separate entities and there clashes in thinking around that one. SNAICC’s view is that families and communities need to be a part of the package, and to uphold a sustained commitment to a federal form. For example, the current government has a number of policies in place—as do state jurisdictions. There seems to be a constant flow of new reforms but we come up with the same statistics at the end of each set of reforms. That is of considerable concern to an organisation like SNAICC. A lot is being done or has been attempted. We need someone a little bit distant from it all to work out why so much of it does not seem to bring major change in the longer term.

SNAICC’s recommendation is that a separate Commonwealth Commissioner or Deputy Commissioner for Aboriginal and Torres Strait Islander children be established, that the position should have broad powers to initiate investigations and reviews of child protection, out of home care and family support services. Family support services are important to us because that is a preventative measure. If we can keep families strong and healthy, perhaps we will not need as much child protection.

The position should report directly to parliament and encourage or sustain an ongoing vigilance and a national perspective on Aboriginal and Torres Strait Islanders. It comes back again to being independent. The commissioner needs to be independent so that they have a clear mandate. Obviously the position needs to complement and not be subhuman by current existing government policies. The framework for protecting Australia’s children has a very strong set of statements around it and the National Quality Framework for Early Childhood Education and Care is another fairly strong framework which we would support. There are a number of other recommendations in the submission itself and I am happy for you to ask questions or seek clarification of that.

CHAIR —Your suggestion is that there should be a designated commissioner for Aboriginal and Torres Strait Islander children but in the event that there is not, one of the deputy commissioners should at least be designated with that responsibility.

Mr Hytten —That is correct, yes.

CHAIR —I personally cannot see two commissioners being appointed—one for children per se and then one just for Indigenous children. Can I also ask you to expand on the public health model. A number of submissions have suggested a public health model versus a rights model. Some people have suggested that they go hand in hand but you have an emphasis on public health. Can you expand how you would see that operating?

Mr Hytten —My interpretation of that is simply a model which is strengths based, built from the ground up and based around broader definitions of social health and well-being, including, specifically in the case of Aboriginal and Torres Strait Islander people, community reflection in the context of the family, which is often structurally different from what you might call mainstream families and communities. The public health model from my point of view is a much broader model which is based on strengths and building from strength.

CHAIR —You would see that a children’s commissioner would not just look at the rights and well-being of a child but at the social and economic context in which that child is raised and finds themselves?

Mr Hytten —Yes.

CHAIR —Working with families as well, or governments?

Mr Hytten —As long as the focus is on what is in the best interests of the child, I think we need to look at a broad range of perspectives in terms of how they inform government or evaluate what is happening. For example, all the good policies on the planet for child protection—I am fairly heavily involved in the Northern Territory as well at the moment—cannot happen if there is no staff and the staff are not going to get there unless there are inducements. As long as you have overcrowding in housing, you are going to have problems with child protection issues. So yes, to use a cliched word, it needs to be a holistic approach, a broader approach, with the focus being on what is in the best interests of the child.

CHAIR —You are suggesting that it should be extended to people who are 24 or 25 years old. Interestingly there has been a lot of conflict about that.

Mr Hytten —I heard about that.

CHAIR —Some people are saying, ‘Let’s just get it up and running and let us stick within the definition of the United Nations rights of the child definition. You would have heard previous witnesses saying, ‘If you go to 25 the focus will become on the needs of 19- to 25-year-olds, which is vastly different from the needs of four- to seven-year-olds. I am wondering why you have opted to extend the age.

Mr Hytten —Some jurisdictions in Australia go to 25. The UN official definition of a youth is from 12 to 25 years, and of course we are talking children as well in this case. The biggest issue in our thinking is that where systems cut off at 18 years, for kids who have been through the system and the system has been their family they suddenly lose all support, which means that they spiral downwards fairly quickly, even if they have been doing pretty well within the system. Kids with families do not suddenly get cut off at 18 and be told to leave home and never come back. They continue to have the support of parents and support in terms of small loans, fixing cars, housing, someone to talk to—all sorts of stuff. Under the current system, we cut off at 18 and those kids are abandoned, in a sense. So we figure that up to 25 kids are still kids, still attached to parents, family and home. If the system has been home, that should continue.

Senator HANSON-YOUNG —Thank you for your submission, Mr Hytten. I am not sure whether you have had a chance to read any of the other submissions but there is overwhelming support for the children’s commissioner. Many people  have asked for the bill to specifically mention the vulnerabilities of Aboriginal and Torres Strait Islander children and I think that is very much warranted.

I do like the idea of a deputy commissioner to focus on that role. I think that is a good way forward. I agree with the chair. In the context that we have been having this debate about a children’s commissioner for 20 years, I cannot see us getting two. But I think a deputy commissioner, someone to support the commissioner in that specified role, is warranted. I just want to know whether under the current context of the UN Convention on the Rights of the Child you see that there are breaches in our duty of care and the rights and welfare of Aboriginal children in Australia.

Mr Hytten —I cannot give you a specific answer because I would have to read it all again and think about it in that context. But in broad terms clearly when children are in situations that appear to be unresolvable—and not all but most children come into situations that are untenable for them at some point—when they are left year after year in a context where they have very little hope and they are constantly in a state of semi-abuse through neglect or active abuse then, yes, I think that is a breach of their rights, without using a big capital R. It is certainly an abuse of those children. That is not right. I have to try to avoid the ‘rights’ issue; this is not the platform. If it is not right, ethical or moral then we should not be allowing it to happen. I guess I would see the deputy commissioner or the commissioner—we will go for the commissioner because we might as well try; we can maybe settle for the deputy quite happily—as someone who needs to be asking those questions on behalf of people who do not have that voice for themselves and asking it of agencies like mine as well as government agencies like yours and bureaucracy wide.

This is continuing, and we know it has continued for over 20 years. Throwing money at it is not the only solution, in my view. It is about how we throw or spend the money. That seems to be almost irreconcilable. I almost want to talk off the record here but, anyway, it is almost irreconcilable to me that we as institutions continue to make the same mistakes again and again. We do not listen to what families are telling us. We do not listen to cultural stuff. Our world view—and it is not racist with a capital R—does not account for a different culture. It does not account for a different way people live and, therefore, it keeps smashing those people against walls and punishing them for being who they are.

Senator HANSON-YOUNG —Have you seen examples in other places in the world where they have introduced this type of position, a commissioner or an ombudsman, under the banner of the UN Convention on the Rights of the Child where it has supported children from those more marginalised groups in those countries? Do you draw hope from that?

Mr Hytten —The only minor examples that I know of come from Canada where for a whole range of reasons the government 20 years ago approached the whole issue slightly differently. Canadian Native Americans—I am not sure if it is across Canada but certainly in pockets—have a far greater level of self-generated organisations and community controlled organisations. My understanding is that that as a general response is much stronger. There is certainly lots of evidence that says where a community has control of their own issues and have a strong cultural context, whatever that cultural context is, then, for example, the suicide rates are considerably lower than in other Native American communities that have been more damaged, if you like, through colonisation and do not have a strong cultural context. So it is not only between the mainstream and the Native American people; it is also between Native American communities where there is greater or lesser cultural context and identity.

Senator HANSON-YOUNG —For the sake of the Hansard and getting some of this on the record, could you outline some of the statistics around the deaths of children and young people in Aboriginal and Torres Strait Islander communities, whether they be in traditional and remote communities or in urbanised communities.

Mr Hytten —I would have to get back to you on that . I am happy to write a supplementary submission on that. Specifically what would you like to know?

Senator HANSON-YOUNG —I just think it would be good for the sake of the inquiry to have some of the statistics about the specific vulnerability of Aboriginal and Torres Strait Islander children. It is something that all of the submissions that we have had thus far have raised. Everyone agrees that these kids, in particular, are in a higher risk category in terms of their vulnerability. If we could have some of those statistics about suicide rates and homelessness that would be helpful.

Mr Hytten —Sure. They are all over the place. I do not carry them in my head, but they are easy to find.

Senator HANSON-YOUNG —That is fine. I have a final question. I would like to know if you have had any specific thoughts as to whether the commissioner position should be housed within or outside of the Human Rights Commission. We have heard views from both sides on this over the last two days. Have you thought about that? Where do you think it would be best placed?

Mr Hytten —I do not really know the structures of governments. My assumption and I think SNAICC’s view would be that it would make sense. That is not a carefully considered view. It simply makes sense for it to be part of the Human Rights Commission. But I do not know enough about it, so I do not really have a strong opinion on where else it would go. I do not actually know where else it could go.

Senator HANSON-YOUNG —The argument is either for a standalone commission or for it to be part of the Human Rights Commission.

Mr Hytten —We can get back to you on that as well. I will check that out and ask people.

Senator HANSON-YOUNG —Thank you. The recommendations from SNAICC are fairly clear. I hear them a loud and clear.

Mr Hytten —Just one thing on your question about statistics. One of the things that one of my staff prepared for me says that in the 12 months ending 30 June 2010 the number of Aboriginal and Torres Strait Islander kids in out-of-home care increased by nearly 1,000 or 10 per cent. It was an increase of 946 children, which represents a percentage increase of about 9.6 per cent. So when all these other additional things are coming in to try to theoretically support and so on, we are having more and more kids actually being removed.

Senator HANSON-YOUNG —From their traditional family homes?

Mr Hytten —From their traditional families in the broader sense of extended community. There are some issues of fine detail that we are trying to work on with FaHCSIA and others around how you even define carers. A grandma or auntie, for example, may have a police record from some years ago. In the Northern Territory lots of people have records from not paying parking fines, for example. So a whole bunch of people get disqualified from being carers for reasons that are relatively shallow.

Senator HANSON-YOUNG —But those children are being removed from those—

Mr Hytten —Children are being removed and not being placed with family because they say, ‘We can’t find people to place them with who meet the criteria.’ The criteria are set in a way that culturally make it very difficult for many people to meet them.

Senator HANSON-YOUNG —In this case, the commissioner could actually take that broad view and step back and say, ‘Hang on a minute. There is a bit of a mishmash going on here. What is best for the rights of the child? What is in their best interests?’

Mr Hytten —We have anecdotal stories. Organisations like SNAICC have no real research capacity—you are kind of almost looking at it!—and we cannot find that out, whereas a commissioner’s office should have the capacity to link with whoever to get money to find out if this anecdotal stuff is true or just somebody’s fantasy.

Senator HANSON-YOUNG —And ask direct questions of government to feed that data back.

Mr Hytten —Yes. It is an administrative issue; it is not even a political issue. It is an administrative issue that at various levels of the bureaucracy we simply cannot get to.

CHAIR —I think that is a good point. The work of the Human Rights Commission when it started off with its inquiry on ‘pregnant and productive’, for example, then led to the impetus for paid maternity leave in this country. I suppose what you are saying is that, if the children’s commissioner has that research capacity and that national capacity to actually have some oversight of what is happening with inquiries and research, it could lead to change and an impetus to look at it and review it. It is a good point. Other submitters have not raised in our consciousness that point about the capacity to have that research and to drive change. People have more put to us that the commissioner would have the capacity to be at arm’s length from the government and be a bit of a watchdog and commentator. But you are right. It could have the capacity to drive change as well.

Mr Hytten —Just being a watchdog and a commentator, other than being a thorn in the side of government, is not really useful. You can go into the streets of Alice Springs and ask 10 people and they will tell you what they think is wrong with the way the system is working. The difficulty is how we get that into a policy context where it can be discussed and debated.

Senator HANSON-YOUNG —And you need to have leadership to drive that.

Mr Hytten —Yes. A commissioner can do that. Even SNAICC would love to do that. We are not resourced to do that. We are totally dependent on government for funding anyway, so how much of a thorn we can be is always the question. SNAICC would want to say, ‘Look, this person needs to be productive,’ but they need a positive influence and not just to be told, ‘You are not doing this right and you are not doing that right.’ It has to be a question of asking, ‘What the hell are the solutions? What can we do about this and how do we find out?’ It will be different in Alice from what it is in Darwin let alone Melbourne.

CHAIR —Thanks very much for your submission and your time this morning.

Mr Hytten —My pleasure. How soon do you need that material—ASAP?

Senator HANSON-YOUNG —As soon as you can, really.

Mr Hytten —The Social Justice Commissioner’s report probably has all of that, but I will send you something.

CHAIR —We do not actually table our report for quite a while. Our secretary has just suggested that it can be when we send you the proof Hansard. Do not rush to get it done in the next couple of days. Take your time. Take a good week. Thanks very much.

[9.54 am]