Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
30/03/2011
Commonwealth Commissioner for Children and Young People Bill 2010

CHAIR —Good morning. Welcome to our public hearing of the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010. I have a spiel here that reminds people that officers of a department of the Commonwealth or a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to the minister. Can you provide us with some opening comments and then we will go to questions?

Mr Branson —The Australian Human Rights Commission has, for a considerable time, advocated for the establishment of a statutory office of a Commonwealth commissioner for children and young people. The commission is pleased by the introduction of the Commonwealth Commissioner for Children and Young People Bill 2010 which would, if passed, establish that office. Over the past few years there have been widespread calls by civil society organisations working with children and young people for the establishment of such an office, which we suggest demonstrates the growing recognition of the need for a coordinated approach to children’s rights in Australia.

As a signatory to the Convention on the Rights of the Child, Australia has specific obligations to respect, protect and fulfil the rights of children. To help it comply with those obligations, the United Nations Committee on the Rights of the Child has encouraged each state party to establish an office of a children’s commissioner and has consistently expressed concern at Australia’s failure to do so.

Many, perhaps most, children in Australia are able to enjoy their rights; however, the rights of some children are vulnerable. These include children experiencing homelessness, children experiencing violence, bullying or harassment, and children who live with a disability, including those living with mental illness. There are also particular groups of children whose rights are at risk, including Aboriginal and Torres Strait Islander children, children in out-of-home care, children in detention—particularly those in immigration detention—and children living in rural and remote areas of Australia. The right of children to participate in decisions affecting them is recognised both internationally and in Australia. Children’s views should be heard on issues that affect their lives and these opinions should be respected by those involved in the official decision making processes.

A Commissioner for Children and Young People could facilitate this participation. However, there may be times when children are not able or not invited to participate directly in decision-making processes. At these times it is critical that there is someone with a mandate to speak on behalf of children and to represent their interests to government and policymakers. A Commissioner for Children and Young People would operate as the national advocate for children’s rights.

A Commonwealth Commissioner for Children and Young People should be given the following functions, we suggest: to monitor, investigate and report on the implementation of children’s rights under the United Nations Convention on the Rights of the Child; to promote respect for the views of children and ensure that their opinions are expressed and heard; to support children involved in court proceedings and intervene in relevant matters before courts; and to promote public understanding of children’s rights among government, government agencies and the general public.

The commission believes that it is essential that a Commonwealth Commissioner for Children and Young People operate under a human rights framework. A human rights framework would ensure focus on the rights of all children. It would consider children to be rights holders rather than merely service recipients. For each right there is a corresponding obligation on the part of government, service providers and individuals to respect, promote, and protect and fulfil that right. A rights based approach also relies heavily on the active and meaningful participation of children. Finally, a rights based framework would improve the accountability of governments and institutions through the scrutiny of laws and policies and support positive steps for reform should they be necessary.

The commission has two primary concerns with the bill. The first concerns the guardianship of unaccompanied minors in immigration detention. The commission has repeatedly recommended that an independent guardian be appointed for unaccompanied minors in immigration detention. However, the commission is not convinced that this role should be taken on by a Commonwealth Commissioner for Children and Young People. We favour guardianship responsibilities being undertaken by people with appropriate expertise who are located as close as practicable to places of detention. A Commonwealth commissioner might play a coordination role but, we suggest, should not be directly responsible for the guardianship of individual children.

Secondly, that the commission has concerns about the stipulation in the current bill that the Commonwealth commissioner prepare Australia’s national report to the United Nations Committee on the Rights of the Child. In the view of the commission, this has the potential to compromise the independence of the commissioner as well as their capacity to monitor the implementation of children’s rights and to advocate for change. The Commonwealth commissioner should be able to prepare an independent report to the committee should he or she wished to do so. I thank the committee again for this opportunity to appear before it.

CHAIR —Thanks very much, Ms Branson. Your first recommendation is that a statutory office of a Commonwealth Commissioner for Children and Young People be established. Do you see that as being part of the Australian Human Rights Commission?

Ms Branson —The Australian Human Rights Commission has similar functions and powers to those that are envisaged for a Commonwealth Commissioner for Children and Young People, but we do not have a strong view on whether the Commonwealth commissioner should be placed within the Australian Human Rights Commission. What we see as most important is that the office is established, that it has a rights based focused, and that it coordinates effectively with state and territory children’s commissioners. Of course we recognise that it could easily fit within the Australian Human Rights Commission and we could provide a suitable home for that reason for it. But whether or not the commissioner forms part of the Australian Human Rights Commission, it is likely, we think, to prove both efficient and effective for the commissioner to receive policy and corporate support advice from the Australian Human Rights Commission. So, in short, we agree that it could be within the Australian Human Rights Commission but the most important thing is not where it is placed but that it be created and what that position is empowered to do.

CHAIR —Children’s commissioners around the country are not part of the state and territory discrimination commissions are they?

Ms Branson —They are not.

CHAIR —They are statutory authorities. Can I go to the complex discussion that is evolving in this about children in detention, particularly children who are seeking refugee status, either as unaccompanied minors or with parents. Do you have a view about the role this commissioner would play in this? Some submissions are suggesting that this commissioner should become the guardian. Quite a lot of submissions are suggesting that the immigration minister should no longer be the guardian, because there is a conflict of interest there, and that that role should be handed perhaps to the Minister for FaHCSIA. Can you provide some commentary for us about what the commission’s view on this might be?

Ms Branson —For many years the Australian Human Rights Commission has argued that there is a conflict of interest in the minister for immigration being the guardian of unaccompanied children in detention while at the same time the minister is responsible for their detention and is the ultimate decision maker on the applications for asylum in Australia. This conflict of interest is not removed by delegation of guardianship responsibilities to officers from the minister’s department. In these circumstances, the minister cannot advocate for the best interests of the children for whom he or she is guardian. Accordingly, we have long argued—and we do so today—that an independent and suitably qualified specialist should be appointed as the guardian of every unaccompanied child in immigration detention. We do not have a position on exactly who should take on this responsibility, but it is imperative that it be a person with specific expertise who is located, as I have said, as close as practicable to the facilities in which the child is detained. Consideration should be given, we suggest, to entering into arrangements with state and territory child protection agencies and the organisations who undertake guardianship responsibilities on their behalf. We do see the Commonwealth Commissioner for Children and Young People as someone who might play a coordinating role, but we do not argue that they should themselves be the guardian.

Senator BARNETT —The chair has asked some important questions already. I want to ask you, Ms Branson, about the role of the state and territory commissioners. I assume you believe they play an important role. I would like your confirmation of that. I also want to ask about the issue of duplication and red tape with having a further commissioner at the federal level and how that can be best dealt with from your perspective.

Ms Branson —I do agree that the state children’s commissioners do play a valuable role. Of course, it is not the same role in every jurisdiction. Their particular statutes govern what they do, and they fill a range of functions. In my capacity as the Human Rights Commissioner, I attend their meetings when I can, and we find that we have many interests in common. I do not believe that there would be unnecessary overlap between the roles of the proposed Commissioner for Children and Young People at the national level and the respective state commissioners. Indeed, I do not believe that they think so either, and I have had the benefit of reading their submission on this bill.

Senator BARNETT —Do you have any feedback to the DIAC submission? They have made a number of comments in their submission about the role of children in immigration detention centres, and in particular they have said that the Ombudsman and the Human Rights Commission can investigate complaints made by individuals with respect to administrative actions of Australian government officials and breaches of human rights. Do you agree with that, and do you think you are responding adequately or do you feel that more is necessary for you to respond adequately to meet those objectives set out in the DIAC submission?

Ms Branson —Both the Australian Human Rights Commission and the Ombudsman have legitimate concerns about the rights of children generally and in immigration detention. At the commission we can entertain complaints from children who are held in immigration detention but we do not believe that what we are able to do, with the resources we have, is adequate for all of the things that we feel can be done by a specialist and appropriately resourced Commonwealth commissioner for children and young people in this area. You would be aware that the commission has in fact done quite significant work around the rights of children including children in detention. You would be aware of the A last resort report and the commission has also done work around children involved in legal proceedings but, without a commissioner with a special focus solely on children and with resources that are dedicated to that purpose, the range of activities which I have outlined in my opening statement and set out in our submission cannot be done to the extent that I think children in Australia deserve to have them done.

Senator BARNETT —Thank you, Ms Branson.

Senator HANSON-YOUNG —Good morning, Ms Branson. I would like to tease out a little bit why you think in particular that we actually need a Commonwealth children and young people commissioner. We have heard from advocates for children’s rights about the need for a specific voice for children and for independent oversight. But, from the perspective of the Human Rights Commission, surely these are things that you already consider and you are already reporting on and advocating to government over. Why do you believe we need a specific commissioner for children and young people?

Ms Branson —I think the first thing is that we all know that our children are our future and that they are also the vulnerable group in our society. They do not vote. Their capacity to advocate for themselves grows over time but it is very slight particularly for younger children. They are vulnerable and are deserving of protection. When we think about that we then reflect on the fact that we have the convention on the elimination of discrimination against women and we have supported it in Australia by the appointment of a sex discrimination commissioner. We have ratified the convention on the elimination of racial discrimination and we have strengthened our position in Australia by having a race discrimination commissioner. I can say the same across the board. We have got the disability area and our concern for social justice for the Aboriginal and Torres Strait Islander peoples. It is for that reason rather striking that, despite the special needs of children and their particular vulnerability and their special importance to our future, it is the one area where we do not have a commissioner dedicated exclusively to protecting their rights and advocating on their behalf. This commission would very much like to be able to do more in the area, and I believe we have done very important work in the area. It is very important that we go out to listen to children to establish forums in which their views can be heard to make sure that their voices are heard where government policy is formulated and where decisions are being made and to assure that their rights are respected and that they are active participants in decisions about their future. It is something that we could not at the moment endeavour to do at the level which I believe Australian children deserve.

Senator HANSON-YOUNG —In order to be able to fulfil those needs, you would just not be able to have a commissioner incorporated? So you would not be able to just incorporate that role into the work that your commission is already doing? You are saying there needs to be specific value put on that, is that right?

Ms Branson —Were a commissioner appointed as part of the Australian Human Rights Commission and were that appointment accompanied by funding to support the work of the commissioner, this commission could most certainly do it. What we do not have now is a capacity to stretch our existing resources to provide this area with the level of attention I think it deserves while maintaining at an appropriate level our other statutory obligations.

Senator HANSON-YOUNG —Would you be able to outline for us specific breaches of the Convention on the Rights of the Child that you believe currently exist in Australia—if any?

Ms Branson —I think one of the ones that are of concern is the right of children to be heard and participate in the decision making affecting them. There is no structural process in Australia whereby there is an officer or some other person who has a responsibility to make sure that they are alert to what children and young people are thinking on critical issues and then advocating for them in a way that gets their voices heard. Another critical area, which I think this committee will not need me to draw to its attention, is the rights of children in immigration detention. We now have, I think, roughly a thousand children detained in our immigration facilities. We are very pleased with the announcement that the minister will move to remove large numbers of those from detention facilities, but this is a serious breach of the rights of children. The convention tells us that children should only be held in detention as a last resort and then for the shortest possible time. I think juvenile detention facilities around Australia are also an issue of significant concern. We have recently seen press reports about ACT facilities, and South Australian facilities have been a concern for a very considerable amount of time. We and, as I know, many others have very serious concerns about the rights of Indigenous children in this country, in particular their right to live safely and free from violence and their right to education and to be able to access acceptable health facilities. We are concerned broadly with the rights of children in remote and rural Australia and particularly with their economic, social and cultural rights generally.

Senator HANSON-YOUNG —In relation to the issues surrounding asylum seeker and refugee children, the chair has outlined that there are differing views about who should be the legal guardian. I want to hear specifically from you on this: do you believe that the ‘conflict of interest’ that exists is a perceived or an actual conflict of interest in the current context where the guardian is also the minister responsible for the determination of the child’s detention and, in the case of offshore processing, of even whether they can apply for a protection visa?

Ms Branson —I believe it is an actual conflict with very real dimensions.

Senator HANSON-YOUNG —Are you aware that the immigration department’s submission to this inquiry argues that they believe it is simply a perceived conflict of interest? Indeed, they argue in their submission—and we are about to hear from them—that there is no need for any independent oversight, that everything is able to be managed in house. What would be your response to that?

Ms Branson —Our firm belief is that there is an actual conflict of interest and that it is not managed by delegating the minister’s powers to officers who are ultimately answerable, through the head of the department, to the minister. There is a very large number of children currently in immigration detention and we believe that they are all entitled to a guardian who can individually consider their particular circumstances. We cannot forget the unaccompanied minors. I believe that, because of the particular way the act is drafted, some of them are actually in Australia without guardians at all.

Senator HANSON-YOUNG —A number of the other submissions to this inquiry have argued that in the objects of the bill we should include specific reference to those groups of children who are more at risk or of a higher particular vulnerability such as Indigenous children, children with disabilities, refugee and asylum seeker children and children who are under state care. Would you be supportive of a specific mention in the objects of the bill of the different groups of vulnerability that children may come under?

Ms Branson —Before I answer that question could I just go back and expand slightly on my previous answer. In referring to unaccompanied minors in detention, I was of course referring to young Indonesian youths who have come to Australia as crew on boats carrying those seeking asylum. Also, there are children left as orphans following the tragic incident of the boat breaking up on the coast of Christmas Island. Some of those are the ones that I mentioned who are without a guardian at all. So the whole issue of guardianship for children in detention in Australia is a very critical one.

Coming to your later question, we think it would be valuable to articulate in the bill particular groups of children in Australia who have a particular need for a commissioner who can listen to them and advocate on their behalf. However, it would be important that nothing were done that limited the capacity of the commissioner to respond to new and developing situations affecting children in Australia. And it is very critical for us to remember that it is all children in Australia, not just those from particular vulnerable groups, who have the right to be heard and are entitled to be treated with respect and who, for that reason, would benefit from the appointment of a commissioner for children and young people.

CHAIR —Thank you for your evidence today and for the submission from the Australian Human Rights Commission.

[11.42 am]