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Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012

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2010 - 2011 - 2012

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

AUSTRALIAN HUMAN RIGHTS COMMISSION AMENDMENT (NATIONAL CHILDREN’S COMMISSIONER) BILL 2012

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon Nicola Roxon MP)



AUSTRALIAN HUMAN RIGHTS COMMISSION AMENDMENT (NATIONAL CHILDREN’S COMMISSIONER) BILL 2012

Outline

The Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012 (the Bill) establishes the statutory office of Children’s Commissioner in the Australian Human Rights Commission (the Commission).

The Australian Human Rights Commission Act 1986 (the AHRC Act) establishes the Commission and gives it functions in relation to a range of international instruments including, the Convention on the Rights of the Child. 

The Commission currently has a President and six commissioners:

1.       Aboriginal and Torres Strait Islander Social Justice Commissioner

2.       Age Discrimination Commissioner

3.       Disability Discrimination Commissioner

4.       Human Rights Commissioner

5.       Race Discrimination Commissioner

6.       Sex Discrimination Commissioner

This Bill creates a new position of National Children’s Commissioner for the first time at the federal level.  The Commissioner will have functions similar to the Aboriginal and Torres Strait Islander Social Justice Commissioner.

The Children’s Commissioner will promote public discussion and awareness of issues affecting children, conduct research and education programs, and consult directly with children and representative organisations. 

The Commissioner will also examine Commonwealth legislation, policies and programs that relate to children’s human rights, wellbeing and development.

The objectives of establishing a National Children’s Commissioner are to:

·       improve advocacy at a national level for the rights, wellbeing and development of children and young people up to the age of 18 years

·       improve monitoring, by examination of enactments and proposed enactments of Commonwealth laws affecting the rights, wellbeing and development of children and young people

·       promote cooperation between the Commonwealth, States and Territories to promote the rights, wellbeing and development of children and young people

·       encourage the active involvement of children and young people in decisions that affect them, particularly administrative decisions and development of Government policies, programs and legislation



·       support Government agencies to develop mechanisms which enhance the active involvement of children and young people, and

·       assist Australia in meeting its international obligations by promoting and advancing the rights of the child, in particular as enshrined in the Convention on the Rights of the Child.

Financial Impact

The establishment of the Children’s Commissioner will cost $3.5m over four years from 2012-13, when the position is to be established.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The purpose of this Bill is to establish the statutory office of National Children’s Commissioner in the Australian Human Rights Commission. 

The National Children’s Commissioner will promote awareness and discussion of issues affecting children, conduct research and education programs, and consult directly with children and representative organisations. 

The National Children’s Commissioner will also examine Commonwealth legislation, policies and programs that relate to children’s rights, wellbeing and development.

Human rights implications

Children’s rights

The Bill engages and will promote the rights of children as set out in the Convention on the Rights of the Child and the other core human rights treaties, including Article 24 of the International Covenant on Civil and Political Rights

Article 4 of the Convention on the Rights of the Child obliges States parties to “undertake all appropriate legislative, administrative and other measures for the implementation of rights recognised in the present Convention”.  The Committee on the Rights of the Child recommends that national human rights institutions should include within its structure an identifiable commissioner specifically for children’s rights. [1]  

The Bill advances human rights by providing children and young people in Australia with an independent advocate at the federal level who will promote their human rights.   

In performing its functions, the Children’s Commissioner is to have regard to, where appropriate:

  • the Universal Declaration of Human Rights
  • the Convention on the Rights of the Child
  • the International Covenant on Civil and Political Rights
  • the International Covenant on Economic, Social and Cultural Rights
  • the Convention on the Elimination of all forms of Racial Discrimination
  • the Convention on the Elimination of Discrimination against Women
  • the Convention on the Rights of Persons with Disabilities , and
  • such other instruments relating to human rights as the Commissioner considers relevant.

The role will broaden the Australian Human Rights Commission’s advocacy and leadership role in protecting and promoting the rights of children and young people.

The role will contribute to meeting Australia’s obligations under the Convention on the Rights of the Child , a recommendation made frequently by United Nations human rights committees.

Right to privacy

The Bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political Rights .  Article 17 prohibits unlawful or arbitrary interferences with a person’s privacy.  Collecting, using or storing and sharing personal information, including its release without a person’s knowledge or consent, all amount to interferences with the right to privacy.  In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the International Covenant on Civil and Political Rights and reasonable in the particular circumstances.  Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.  The Bill contains a provision relating to information being obtained and shared.  Section 46ML of the Bill requires Commonwealth agencies to give information or produce documents to the Commissioner if the information or document is relevant to the performance by the Commissioner of functions under Part IIAA.  The right to privacy of individuals will be protected by ensuring that when government agencies provide information or documents to the Commissioner, the information or documents do not reveal the identity of a particular individual unless the individual has consented to the giving of the information or the production of the document (new subsections 46ML(4) and (5)).

Conclusion

The Bill is compatible with human rights because it advances the protection of human rights of children and young people in Australia.  It is also compatible with the right to privacy. 

 

 

 

 

NOTES ON CLAUSES

Clause 1—Short title

1.              This clause provides a short title for the Act, the Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012 .

Clause 2—Commencement

2.              This clause provides that the amendments to the AHRC Act in the first Schedule to the Bill will commence on 1 July 2012 or the day after the Act receives the Royal Assent, whichever is later.  The Commission will receive funding for the National Children’s Commissioner position from 1 July 2012.

Clause 3—Schedule 1

3.              This clause provides that each Act specified in the Schedule to the Bill will be amended or repealed as set out in the Schedule.



Schedule 1— National Children’s Commissioner

Part 1— Amendments

Australian Human Rights Commission Act 1986

Item 1

4.              This Item will insert a definition of children to mean people under the age of 18.  This is consistent with the definition of children in the Convention on the Rights of the Child

Item 2

5.              This Item will insert a definition of National Children’s Commissioner into the Act to mean the person referred to in section 46MA.

Items 3 and 4

6.              Like all Commissioners, the National Children’s Commissioner will also be a member of the Commission.  In this capacity, the Commissioner will work with the President and other Commissioners in promoting and protecting human rights for all Australians.

7.              Items 3 and 4 will amend section 8 to include the National Children’s Commissioner as a member of the Commission.

Item 5

8.              This Item inserts a new Part IIAA into the Act to establish the position of the National Children’s Commissioner, set out its functions and other administrative provisions relating to the position.

New Division 1 - Establishment and functions

9.              New section 46MA establishes the position of the National Children’s Commissioner.

10.          New subsection 46MB (1) provides that the functions of the Commission that are to be performed by the National Children’s Commissioner.  These will include:

·       submitting an annual report to the Minister to be tabled in Parliament

·       promoting discussion and awareness of matters relating to the human rights of children in Australia

·       undertaking research, education and other programs to promote respect for children’s human rights and enjoyment and exercise of human rights by children in Australia, and

·       examining existing and proposed Commonwealth legislation to determine if they recognise and protect children’s human rights in Australia.  The Commissioner will report to the Minister on their findings.

11.          ‘Human rights’ is defined in section 3 of the Act to be the rights and freedoms recognised in the International Covenant on Civil and Political Rights , declared by the Declarations or recognised and declared by any relevant international instrument.  The Convention on the Rights of the Child has been declared under section 47 of the Act to be an international instrument relating to human rights and freedoms for the purposes of this Act (Federal Register of Legislative Instruments F2009B00173). 

12.          Accordingly, in performing its functions, the Commissioner can consider a range of matters relating to the rights, wellbeing and development of children.  For example, articles in the Convention on the Rights of Child cover such human rights as the right to education, the right to health and the right to protection against exploitation prejudicial to any aspects of the child’s welfare.    

13.          It is not intended that the Commissioner will duplicate the work of State and Territory children’s commissioners and guardians.  Rather, the Commissioner will work closely and collaboratively with State and Territory counterparts to identify national or cross-jurisdictional matters that would benefit from national leadership.  This will ensure the most effective use of resources across all levels of government.

14.          It is also not intended that the Commissioner will duplicate the work of existing Commonwealth bodies, such as Ombudsmen.  Again, the Commissioner will work closely and collaboratively with existing Commonwealth bodies.

15.          In particular, section 10A of the Act requires the Commission to ensure its functions are performed efficiently and with the greatest possible benefit to the people Australia.  Efficient performance of functions would not include duplication of work by existing Commonwealth bodies or State and Territory children’s commissioners and guardians.    

16.          The Commission has a number of existing functions in regards to the human rights of children.  Section 11 of the Act sets out the functions of the Commission in relation to human rights and as referred to above, human rights include the rights contained in the Convention on the Rights of the Child .  For example, the Commission has the power to inquire into and receive complaints regarding breaches of human rights under the Convention on the Rights of the Child .  This function is vested in the Commission rather than individual Commissioners. 

17.          The Commission also has an existing advocacy role in relation to reporting to United Nations committees.  For example, in August 2011, the Commission made an independent submission to the UN Committee on the Rights of the Child.  The submission presented some information on Australia’s compliance with the Convention.  This may be an area that National Children’s Commissioner may take the lead on in the future.

18.          New subsection 46MB(2) provides that the functions in subsection 46MB(1) are to be performed by the National Children’s Commissioner on behalf of the Commission.  This is similar to the provision for the Aboriginal and Torres Strait Islander Social Justice Commissioner.

19.          New subsection 46MB(3) provides the Commissioner with a discretion to appropriately focus its reports.  The report must cover matters relating to the enjoyment and exercise of human rights by children in Australia but the Commissioner may choose to focus on a particular subject matter area (for example, education or health) or cover a range of subject matters in the one report.  A report may, but is not required, to include specific recommendations for Government as to action that should be taken to ensure the enjoyment and exercise of human rights by children in Australia.

20.          New subsection 46MB(4) gives the Commissioner a discretion, when performing any of his or her functions, to focus on particular groups of children who are at risk or vulnerable.  For example, children with disability, Aboriginal and Torres Strait Islander children, homeless children or those who are witnessing or subjected to violence.

21.          New subsection 46MB(5), provides that the Commissioner, when performing his or her functions,  with the ability to consult with persons and organisations.  While the Commissioner has a general discretion to consult with whomever considered appropriate, this provision highlights specific groups which should be consulted.  It is expected that the Commissioner will consult directly with children.  The Commissioner may also consult with representative organisations, Commonwealth departments and authorities and State and Territory departments and authorities such as commissioners and guardians for children and young people.  It could also include State and Territory departments and authorities which have responsibility for policies affecting children.  The Commissioner may also consult with international organisations and agencies such as United Nations agencies. 

22.          New subsection 46MB(6) provides that the Commissioner must, as appropriate, have regard to the following international instruments when performing his/her functions:

·       the Universal Declaration of Human Rights ,

·       the Convention on the Elimination of All Forms of Racial Discrimination ,

·       the International Covenant on Economic, Social and Cultural Rights ,

·       the International Covenant on Civil and Political Rights ,

·       the Convention on the Elimination of Discrimination Against Women ,

·       the Convention on the Rights of the Child ,

·       the Convention on the Rights of Persons with Disabilities , and

·       such other instruments relating to human rights as the Commissioner considers relevant.

23.          Other instruments relating to human rights may include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

24.          This subsection demonstrates the Government’s commitment under Australia’s Human Rights Framework to promoting awareness and understanding of human rights in the Australian community and respecting our international obligations.

New Divisions 2 and 3 - Appointment and terms and conditions

25.          Sections 46MC to 46MK create the administrative provisions relating to the National Children’s Commissioner.  These provisions largely mirror the administrative provisions for the Aboriginal and Torres Strait Islander Social Justice Commissioner.

26.          Any differences between these provisions and the Aboriginal and Torres Strait Islander Social Justice Commissioner are to reflect updated drafting practices since the position was created in 1992. 

27.          A general obligation for the National Children’s Commissioner to disclose interests to the Commission will apply under section 42 of the Act.

New Division 4 - Miscellaneous

28.          New section 46ML ensures that the Commissioner can obtain information relevant to its work from Commonwealth agencies.  However, the Act will respect a child’s right to privacy by ensuring that when government agencies provide information or documents to the National Children’s Commissioner, the information or documents do not reveal the identity of a particular individual unless the individual has consented to the giving of the information or the production of the document (new subsection 46ML(4) and (5)). 

29.          The Commissioner’s ability to receive information that may relate to particular individuals does not extend the functions of the Commissioner to involvement in individual cases.

30.          This section mirrors the information provision for the Aboriginal and Torres Strait Islander Social Justice Commissioner.  However, it does not cover State and Territory authorities as the National Children’s Commissioner’s work will focus mainly on Commonwealth agencies.  In addition, there is more than one Children’s Commissioner in Australia, whereas States and Territories do not have equivalent Social Justice Commissioners.  This section does not prevent the National Children’s Commissioner from requesting or receiving information from States and Territories.

31.          New section 46MM provides that the Commissioner is required to give the Commission such information it requires on the National Children’s Commissioner’s operations.  This mirrors the equivalent provision for the Aboriginal and Torres Strait Islander Social Justice Commissioner.

32.          New section 46MN requires the Minister to table any report of the National Children’s Commissioner in Parliament within 15 sitting days after the Minister receives the report.  This is consistent with other tabling requirements in the Act.

Item 6

33.          This Item will amend subsection 46PV(3) to include the Children’s Commissioner in the definition of special purpose Commissioners for the purpose of section 46PV.  This section provides the special purpose Commissioners with a power to assist the Federal Court and Federal Magistrates Court as amicus curiae in certain proceedings under Division 2 of the AHRC Act.

34.          This has been historically dealt with by the Human Rights Commissioner so is not a new function as the Human Rights Commissioner has traditionally handled children’s rights matters.

35.          As noted above, the Commission has a number of existing functions in regards to human rights.  Under section 11 of the Act, the Commission also has the power, with the leave of the court, to intervene in court proceedings that involve human rights issues.  This function is vested in the Commission rather than individual Commissioners. 



 

Part 2 - Application and transitional provisions

36.          Part 2 of the Schedule to the Bill includes transitional provisions relating to the establishment of the office. 

Item 7

37.          Item 7 clarifies that the first annual report of the Commissioner will be due as soon as practicable after 30 June 2013.

Item 8

38.          This Item provides that amendments of the AHRC Act in relation to the amicus curiae function of the Children’s Commissioner made by Item 6 of this Bill apply to proceedings that commence on or after the amendments come into force or that have already commenced but have not been completed when the amendments come into force.

39.          As this power is subject to leave of the court, the court will be able to determine if proceedings which are already on foot would be unduly delayed by permitting the Commissioner to exercise this function.

40.          As noted above, this function has been historically dealt with by the Human Rights Commissioner.

 

 




[1] Committee on the Rights of the Child, General Comment No 2 (2002) - The role of independent national human rights institutions in the promotion and protection of the rights of the child , http://www2.ohchr.org/english/bodies/crc/comments.htm , accessed 30 April 2012.