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

CHAIR —Welcome to the hearing. I remind you that the Senate has resolved that an officer of a department of the Commonwealth should not be asked to give opinions on matters of policy and shall be given a reasonable opportunity to refer questions asked of the officer to superior officers or the minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

We only have a submission from the Department of Immigration and Citizenship. I invite you all to make opening statements. Does the Department of Immigration and Citizenship have an opening statement?

Dr Southern —We do not have an opening statement.

CHAIR —Does FaHCSIA have an opening statement?

Ms McKenzie —No, we do not.

CHAIR —Does the Attorney-General’s Department have an opening statement.

—No, we do not.

Senator HANSON-YOUNG —I will start with the Department of Immigration and Citizenship. We are going through an inquiry whose purpose is to tweak the proposal and come up with amendments and so on. It seems from your submission that your overall objection to the idea of the establishment of a Commonwealth children’s and young person’s commissioner is that you believe that there does not need to be that independent oversight. Could you explain why you think that is the case and provide evidence to support it?

Dr Southern —Thank you for the question. As we have set out in our submission to you we have explained that we believe there are oversight bodies which currently exist within the Commonwealth which can undertake the functions that are described in relation to the children’s commissioner. We were very interested to hear the Human Rights Commission discussion earlier in relation to the role that they see it could play and indeed that it could be incorporated as part of their functions. We absolutely sign up to the need for scrutiny of these matters but believe that the existing bodies are able to conduct the functions that you describe as oversight.

Senator HANSON-YOUNG —What is your response to the criticism in the case of the review of the detention of children that the Ombudsman can conduct a review after six months. There is no direct impetus on the minister or even the department to change anything based on that direct advice from the Ombudsman. Then any advice or review of that position does not need to be made public until that child has been in detention for over two years. It has been argued and put to us very strongly in this committee that that is totally inadequate as a function of transparency and oversight. If that is the oversight that you refer to—and it is on page 2—it has been argued that that is inadequate.

Dr Southern —Apart from the reporting that we do to the Ombudsman on individuals who have been in detention for periods of time, the Ombudsman has the capacity to visit detention centres and undertake own motion reviews which he does on a regular basis. I think it is incorrect to say that there is no impetus for the minister or the department to respond to the recommendations that the Ombudsman makes in responding to our six-month review.

Senator HANSON-YOUNG —‘Act on’ were my words.

Dr Southern —Sorry, to act on them in relation to recommendations he makes on our six-monthly review reports and subsequent reports. The department takes those recommendations very seriously and builds them into the case management of clients who are in detention for long periods of time. The more public reporting that occurs after the two-year reports clearly rolls those recommendations into it and indicates the action that the department has taken. We would hope, as we are reporting to the Ombudsman and as he is making recommendations back to us on those six-monthly reports, that we are gradually working through that caseload.

Senator HANSON-YOUNG —Do you think that in the context of our obligations—and perhaps the Attorney-General’s Department would like to respond to this—that it is appropriate that a child can be in immigration detention for six months before there is a required independent oversight or review of that situation?

Dr Southern —I will not go to the appropriateness, if you like, but rather—

Senator HANSON-YOUNG —The point is about whether it is appropriate or not. Your submission argues that there is already appropriate scrutiny and transparency. I want to know whether you believe that it is appropriate that a child can be detained for six months before there is any independent oversight or review of that situation for that child.

Dr Southern —The review that occurs after a child or any other detainee has been in detention for six months is a report from us to the Ombudsman. In the period before that we have processes which involve the individual case management of all clients.

Senator HANSON-YOUNG —Internally?

Dr Southern —Internally and there is a high level of scrutiny within the department of how the cases are being managed. Yes, the external scrutiny takes place at six months for a formal report but as I said the Ombudsman has the capacity at any time to visit detention centres—those visits happen regularly—and to report on own motion inquiries, so the capacity is there for the Ombudsman to do that at any time.

Senator HANSON-YOUNG —But the minister or the department are not required, are they, to act on the direct recommendations of the Ombudsman’s reports?

Dr Southern —I do not believe it is a requirement.

Senator HANSON-YOUNG —No, it is not. So they can report, you can respond, but if the recommendation is that a child should not be in detention, it is simply a toing and froing. There is no legal requirement for the department or the minister to act on the advice of the Ombudsman.

Dr Southern —Correct.

Senator HANSON-YOUNG —From the perspective of the Attorney-General’s Department, do you believe that, under the obligations Australia has as a signatory to the UN Convention on the Rights of the Child, six months can go by, where a child is in detention for six months before any required review into that child’s detention takes place? Is that a breach of our obligations under the Convention on the Rights of the Child?

Dr Boersig —The convention is implemented throughout Australia in a range of ways. In that context, I do not think I can give you a specific answer at this stage to your question.

Senator HANSON-YOUNG —Do you believe that it is appropriate, as the department of immigration argues, that there is an appropriate level of scrutiny as required under the UN convention?

Dr Boersig —I would not say anything different from what has been provided to you by that department.

Senator HANSON-YOUNG —So you cannot give a judgment as to whether or not that is appropriate?

Dr Boersig —I would not provide that opinion at this stage, no.

Senator HANSON-YOUNG —Going back to your official submission to this inquiry, you put forward an argument that there is appropriate scrutiny, that there is appropriate transparency, that no extra oversight needs to happen and that detention of children is a last resort. Could you please give me an example of where the detention of children has not been the first resort?

Dr Southern —As you know, the government’s policy in relation to—

Senator HANSON-YOUNG —I am not asking about policy; I am asking about specific examples of where that statement, as written in your submission, has been implemented.

Dr Southern —No, I cannot think of a specific example, but that is not to say that there are not any. Rather, the policy around detention, as you know, is that people are detained while identity, security and health matters are being resolved. We certainly attempt to make that the shortest possible time, but those processes do take time.

Senator HANSON-YOUNG —Do you believe that the policy, as detailed in your submission, of detention as a last resort, is the current situation?

Dr Southern —It is the current policy.

Senator HANSON-YOUNG —Is it the current practice?

Dr Southern —Yes, under the policy.

Senator HANSON-YOUNG —No. There is a very big difference between a piece of policy and what actually happens. What we have had submitted to us in this inquiry is that this is simply policy on a bit of paper, that it is not what happens on a day-to-day occurrence when a child arrives and is taken into immigration detention on Christmas Island. Where is an example? You have just said you cannot think of an example where detention has not been the first resort.

Dr Southern —No.

Senator HANSON-YOUNG —Therefore, detention as the last resort may be policy but it is not actually being put into practice, is it?

Dr Southern —All of the department’s guidelines are prosecuted around the policy that it is a last resort, but as I said earlier, families and individuals, including children, are detained while we work through the identity, health and security matters.

Senator HANSON-YOUNG —Do you believe, then, that there is a breach of the policy or that the policy is mismatched to the practice—the need to process people’s claims in this way?

CHAIR —I am not sure, Senator Hanson-Young, that the officers are the right people to answer questions about the policy and whether it has been breached.

Senator HANSON-YOUNG —I keep asking what the practice is, and they keep coming back to me with policy.

Dr Southern —The practice reflects the policy, Senator.

Senator HANSON-YOUNG —But it does not, does it? Because you cannot give me an example where the practice has reflected the policy.

Dr Southern —You asked me for a specific example earlier and, as I said, I cannot give you one.

Senator HANSON-YOUNG —No, because that does not exist.

Dr Southern —I am quite happy to take that on notice.

Senator HANSON-YOUNG —If you could take that on notice, that would be very interesting, because I have not seen it in practice.

Dr Southern —Okay.

Senator HANSON-YOUNG —In your submission you outline the argument that there are already adequate measures and checks in place to cover the welfare, rights and protection of children in immigration detention. How can you argue that there is appropriate oversight when we have seen example after example of situations where people’s rights have been breached, where they have been unfairly detained and where taxpayers’ dollars have been spent on compensation? Where is the evidence that there is appropriate oversight? And give me an example of where appropriate oversight has actually worked.

Dr Southern —Again, Senator, you are talking about examples whose specifics I am not aware of. If we had them here, perhaps we could discuss them further. Yes, there have been cases in the past where—usually as a result of court action or complaints to the Human Rights Commission—compensation has been paid. But, in my view, that is part of scrutiny happening.

Senator HANSON-YOUNG —So we have to wait till we do the wrong thing?

Dr Southern —No. There is a continuum, if you like, and occasionally it does happen after the event and it is as a result of scrutiny that comes in from the Ombudsman, the Human Rights Commission or, in some cases, the courts. What we are saying is that there are a number of mechanisms in place, both external scrutiny and processes that exist within the department, that are directed towards ensuring that cases are dealt with appropriately and that all efforts are made to resolve the cases, in an immigration sense, as soon as possible. Yes, there could be additional scrutiny from a children’s commissioner, or possibly not—and, should such a commission be established, obviously the department would work with such a commissioner. We were simply making the point that there are mechanisms to scrutinise the actions of the department at the moment, and they operate effectively.

CHAIR —Senator Barnett, have you got any questions?

Senator BARNETT —Yes, I do.

CHAIR —Senator Hanson-Young, I am just going to go to Senator Barnett, because I think he has to go in about 10 minutes.

Senator HANSON-YOUNG —Sure, but I have not finished.

CHAIR —No, I understand that.

Senator BARNETT —I think it is good if we interact a bit here, because I just want to get some clarity from the other departments as well. We have DIAC’s submission; thank you for that. Do DIAC support the bill?

Ms McKenzie —At the moment, our major engagement in the consideration of a national children’s commissioner is through the National Framework for Protecting Australia’s Children. That national framework was signed off by the Commonwealth and the states and territories. There was an implementation plan agreed for the first three years. One of the priority projects that were listed in that implementation plan was the consideration of a national commissioner for children, and that consideration is ongoing.

Senator BARNETT —And is that a COAG type arrangement—federal and state?

Ms McKenzie —The National Framework for Protecting Australia’s Children was agreed by COAG.

Senator BARNETT —So does your federal minister have a position on this matter as yet? Have you been instructed accordingly?

Ms McKenzie —We have provided advice to the minister. We have iterated around that advice. But my understanding is that, at this moment, we have not been informed of the minister’s decision.

Senator BARNETT —As to whether you support the bill or otherwise?

Ms McKenzie —Yes. We are interested in the outcome of this inquiry.

Senator BARNETT —I am just trying to get it so that I am in the picture here. So you have not received advice from the minister as to the support or otherwise for the bill? Right. Does the Attorney-General’s Department have a view?

Dr Boersig —That is the same position.

Senator BARNETT —Is there anything going on in the A-G’s department similar to FaHCSIA in regard to protecting the rights of children? Are there any SCAG arrangements happening that we do not know about?

Dr Boersig —No. We are working with FaHCSIA on the issue.

Senator BARNETT —Going back to FaHCSIA, is there a consultation process regarding this arrangement? And when do you expect the key decision makers to come back for a further view with respect to the merit or otherwise of such an appointment?

Ms McKenzie —As I have mentioned, there is an implementation plan around the national children’s commissioner. This implementation plan goes for the first three years of the national framework. The first three years are up in September next year, so we would expect the issue to have been resolved over the period of those three years. In the implementation plan, one of the key milestones was that the Commonwealth bureaucracy would provide advice to government by the end of 2009. In actual fact we did not provide that advice until early 2010 and since then there has been consideration around this issue.

Senator BARNETT —Can you provide to the committee further and better particulars regarding this implementation plan and the views of the various stakeholders with respect to the merit of the appointment of a children’s commissioner?

Ms McKenzie —I think you have already talked to a number of key people who are involved in the national framework. The national framework is a trilateral governance mechanism. It has the Commonwealth government and the state and territory governments, but it also has non-government representatives from the Coalition of Organisations Committed to the Safety and Wellbeing of Australia’s Children. I think that about 20 or 30 of your submissions came from organisations that are involved with that coalition, and I know you were talking to Families Australia yesterday and they act as the coordinator for that coalition. So I think you have a reasonable spread of views. In addition to that, we have spoken to the children’s commissioners and guardians about some of the issues that they have raised in their submission in terms of duplication and the importance of getting clarity around these kinds of issues.

Senator BARNETT —That is the particular concern I have. Have you got an answer to that, in terms of avoiding duplication, red tape, extra cost and overlap in the roles of the federal and state and territory commissioners?

Ms McKenzie —I think that is very much an issue that needs to be addressed in the design of the detail of the model. We would argue that one of the key things to be sorted through is to understand exactly what the model is. In looking at the national children’s commissioner, there are a range of different issues that can come up. One that I know was also raised with you yesterday was the question of whether it should be a rights based model or a public health and wellbeing based model.

Senator BARNETT —And what do you think?

Ms McKenzie —At this stage, the department does not have a view. Rather, we understand that you can look at various positions along the continuum from it being a rights based model right the way through to it being a public health and wellbeing based model. And you get different advantages and disadvantages out of the various models.

Senator BARNETT —Dr Boersig, did you have a view in addition to that or are you simply noting and acknowledging what has been said?

Dr Boersig —Acknowledging what has been said.

Senator BARNETT —Frankly, I am finding that very frustrating. Let me put it right upfront with you. I would like you to take on notice to talk to your minister about whether you are entitled to provide us with a view as to the issue of regulation, red tape and overlap. I would like to know your views on the best way to design such a model which would avoid all that. If we are going to proceed down this track, I want that to happen. I would like to ask each of the witnesses at the table to come back to this committee with your views on the preferred model so that we avoid duplication overlap. We are getting views from different people but frankly you are in the hot seat. You are here as witnesses. You have a whole department. You have talked to all your state and territory colleagues so you must have a view. I am asking you to take on notice to talk to your—that is very important.

Ms McKenzie —We will take that on notice.

Senator BARNETT —Thank you.

CHAIR —Ms McKenzie, can I clarify that you are saying that model is being discussed and designed as part of the implementation of the National Framework for Protecting Australia’s Children?

Ms McKenzie —The framework covers a range of issues. It has 70 actions and is meant to be ongoing for 12 years. There were 11 priorities. One of the priorities was to look at the role of a national children’s commissioner because it had been raised by stakeholders in the consultation leading up to the framework.

CHAIR —Are we asking you to give us something that would pre-empt work currently being done?

Ms McKenzie —I am happy to take it on notice to try to give you as much as we possibly can. It may well be just an analysis of the areas of duplication and possible ways through. Maybe that is as far as we can provide.

Senator BARNETT —If you could do that, that would be a lot better than what we have at the moment. We would like to look at the different options and models, and at your preferred way. If you cannot do that, just give us the options we can look at, and likewise with each of the witnesses at the table. That would be of usefulness to the committee in my view.

CHAIR —Given that the Human Rights Commission and a number of other advocates have for a number of years now put the view that there is an actual conflict of interest between the role of the minister for immigration in being the guardian of children as well as the determiner of the outcome of their situation—is that under review? Is that section of the Migration Act and the guardianship act under review?

Dr Southern —We are certainly discussing options with the minister. We recognise, as we stated in our submission, that there is a perceived conflict of interest in relation to his responsibilities under the Migration Act.

CHAIR —So there is an actual conflict of interest, it is not a perception?

Dr Southern —Our evidence in our submission was that it was a perceived conflict of interest. We recognise that this is a real issue and we are working through options with the minister.

CHAIR —Why do you think it is perceived rather than an actual? He does actually have a guardianship role and he is a determiner of their conditions. It is an actual conflict, is it not?

Ms Pope —This is an opinion within the rules—

CHAIR —I am asking you to give me your interpretation of his role under the acts.

Ms Pope —My view would be that it is an actual conflict of interest if it plays out as a challenge for him to make a decision under either of those pieces of legislation and they are in direct conflict. I am not aware of where he has been actually faced with that conflict, which is why we would describe it as ‘perceived’—in the sense that it could come to that—but I am not aware of a situation where there has been that direct conflict.

CHAIR —Why? Because there has not been a decision of the courts or it has not been tested?

Ms Pope —I am not aware of a time when he has had to make a decision or has been faced with a conflict under both pieces of legislation—in other words, seeing them in direct conflict and having to deal with that conflict.

CHAIR —But the fact that the possibility is there, is that not reason enough to disaggregate them both?

Ms Pope —That goes to the question of a perceived conflict of interest, which we have acknowledged. We have advised that we are working on ways to manage that.

CHAIR —Senator Hanson-Young, do you have just a couple more questions?

Senator HANSON-YOUNG —Yes, specifically on this area. So the reason that you believe a conflict of interest is perceived as opposed to actual is that it has never been challenged?

Ms Pope —No. What I said was that I am not aware of a point in time when the minister has had to directly face that conflict. That is what I am saying.

Senator HANSON-YOUNG —So, in the detention of a child for six months before anyone external is required to review their case, you do not believe there is any conflict of interest when the person who is meant to be looking out for their welfare is the same person who has allowed them to remain in detention because they are also the person who determines that that child stay there? In regard to the 450 unaccompanied minors that are currently in detention, you do not see that that is a conflict?

Ms Pope —I am not an expert on all of the details of this, Senator, but what I was thinking about was a case where the legislation requires the minister to make a decision under either of those acts that is in direct conflict. That is what I was referring to. I am sorry if what I said was misleading.

Senator HANSON-YOUNG —The policy says, as Dr Southern said earlier, that the detention of a child should be as a last resort. When we have an immigration minister who is detaining 450 unaccompanied minors but is also supposedly their guardian, surely he is carrying out just one part of his role. When it is not actually in line with the policy, who is advocating for those children that the policy be upheld—that detention is a last resort and not a first resort? Where is the advocacy from their guardian claiming that that policy has been breached?

Ms Pope —Senator, I do not think there is a lot of value in an argument over whether the conflict is perceived or actual. We have certainly acknowledged that there is a perceived conflict of interest and that we are working to resolve that. It has been acknowledged publicly and in our submission that that is an issue that needs to be resolved.

Senator HANSON-YOUNG —In acknowledging that this is a problem, what are the options that are on the table? If you do not want a Commonwealth children’s commissioner to be that guardian, what are the options? What advice are you giving? Who are you speaking to?

Ms Pope —One thing that I would like to clarify is that we are not saying we object to the appointment of a Commonwealth commissioner for children. That was not the intent of our submission. It was really to say that, if that were to happen, these are some of the things where there would be workability issues from our perspective. As you know, there is not a resolved Commonwealth view about a commissioner. We were not intending to make a statement about our support or otherwise for such a position in the submission we made. Rather, we wanted to say that the layers of oversight, as discussed earlier, are one issue, and we have outlined two or three other issues that we would need to resolve if that legislation went ahead and such a position was created. So I am not seeking an argument over whether or not there ought to be a children’s commissioner. In terms of potential solutions, we are looking at a range of possibilities and are in discussions with the minister about those. At the moment, I am not at liberty to discuss them.

Senator HANSON-YOUNG —Have you sought advice from child welfare experts as to where they believe the guardianship of these children should sit?

Ms Pope —We are not quite so advanced that we would be formally seeking that advice in a public sense, because we have not taken the discussion with the minister far enough yet to be in that position. But we have sought and taken some informal advice from practitioners in the field, yes.

Senator HANSON-YOUNG —How many people are in your advisory committees and councils? I know there are various levels—some that report to the minister, and some that report just to you and you decide whether to pass on the information. How many advisers do you formally have in place who have expertise in child welfare and protection?

Dr Southern —I do not have that detail to hand, but I am very happy to take that question on notice.

Senator HANSON-YOUNG —Could you take that on notice, please.

Dr Southern —Yes.

Senator HANSON-YOUNG —That would be very helpful. I want to clarify that, while your submission argues that the conflict of interest is simply a perceived conflict of interest, you are not wedded to that position.

Ms Pope —We agree that there is a perceptive conflict of interest that needs to be resolved. I do not feel in a position to debate actual versus perceived. If we solve perceived—

Senator HANSON-YOUNG —To you it does not matter. If it is perceived that is enough of a problem.

Ms Pope —If we resolve the perceived conflict of interest we will have resolved any actual conflict of interest, if it exists.

Senator HANSON-YOUNG —Okay.

CHAIR —We do not have any more questions for you. I thank you all for coming today and for making yourselves available. I thank all the witnesses who appeared yesterday and today.

Committee adjourned at 12.16 pm