Inquiry into the Commonwealth Commissioner for Children and Young People Bill 2010 (2010)
Legal
Inquiry into the Commonwealth Commissioner for Children and Young People Bill
2010
Australian Human Rights Commission
Submission to the Senate Legal and Constitutional Affairs Committee
15 December 2010
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Table of Contents
- 1 Introduction
- 2 Summary
- 3 Recommendations
- 4 Why does Australia need a national Children’s Commissioner?
- 5 A national Children’s Commissioner should take a rights-based approach
- 6 What would a national Children’s Commissioner do?
- 7 Guardian of unaccompanied minors who arrive in Australia without a visa
1 Introduction
-
The Australian Human Rights Commission (the Commission) makes this
submission to the Senate Legal and Constitutional Affairs Committee in its
inquiry into the Commonwealth Commissioner for Children and Young People Bill
2010. This submission considers the broad issues raised by the Bill. It does not
make a detailed analysis of each proposed provision. -
The Commission has for a number of years supported the establishment of the
Office of a national Children’s Commissioner as an important way of better
respecting and promoting the rights of all children in Australia. -
Australia ratified the United Nations Convention on the Rights of the Child
(CRC) in 1990. This means that under international law the Australian Government
has specific human rights obligations to children. -
The United Nations Committee on the Rights of the Child has expressed
concern that there is no national commissioner with a specific mandate for
monitoring children’s rights in Australia. The Committee has also noted
that despite the valuable work of the Australian Human Rights Commission in the
area of children’s rights there is no unit devoted specifically to
children’s rights at the
Commission.[1] Establishing a
Commonwealth Commissioner for Children and Young People would be an important
step towards meeting Australia’s international obligations to protect and
promote the rights of children in Australia.
2 Summary
-
The Commission would welcome the establishment of the office of a
Commonwealth Commissioner for Children and Young
People.[2] The Australian Human Rights
Commission believes that a Commonwealth Commissioner for Children and Young
People could play an important role in protecting the rights of children and
young people, in particular by:-
operating as a national advocate for children’s rights, ensuring that
government decision making processes and outcomes are consistent with the best
interests of children -
developing mechanisms to secure the participation of children in decisions
that affect them -
providing a coordinated national approach to children’s rights.
-
-
The Australian Human Rights Commission believes that the key features of a
national Children’s Commissioner are:-
independence from government
-
statutory authority and power, including security of tenure
-
adequate resourcing
-
accessibility to children, including establishment of a child-appropriate
complaints process -
exclusive focus on children under 18 years of age
-
ability to act proactively and reactively and to direct its own agenda.
-
3 Recommendations
-
The Commission recommends that:
-
Recommendation 1: A statutory office of Commonwealth Commissioner for
Children and Young People should be established. -
Recommendation 2: The functions and powers of a Commonwealth Commissioner
for Children and Young People should extend to ‘all children in
Australia’ regardless of their citizenship or residency status. -
Recommendation 3: The Australian Government should retain responsibility for
preparing reports to the United Nations Committee on the Rights of the Child.
The Commonwealth Commissioner for Children and Young People should be able to
prepare an independent report to the Committee should he or she wish to do
so.
-
4 Why does Australia need
a national Children’s Commissioner?
-
Many 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 certain groups of at-risk children who are less likely to be
able to enjoy their full range of rights. These groups include Aboriginal and
Torres Strait Islander children; children in out of home care; children in
detention, including those in immigration detention; and children living in
rural and remote areas of Australia. -
A Commonwealth Commissioner for Children and Young People would play an
important role in promoting and protecting the rights of all children in
Australia, particularly of those who are most at risk. This could improve their
opportunities to develop to their full potential and to make a positive
contribution to society. In particular, a Commonwealth Commissioner for Children
and Young People could:-
operate as a national advocate for children’s rights, ensuring that
government decision-making processes and outcomes are consistent with the best
interests of children -
develop mechanisms to secure the participation of children in decisions that
affect them -
provide a coordinated national approach to children’s rights.
-
-
Recommendation 1: A statutory office of Commonwealth Commissioner for
Children and Young People should be established. -
The Commission is concerned that the Bill refers to ‘Australian
children and young people’ in proposed section 9(1)(a). Under the CRC, the
Australian Government has obligations to all children in Australia, whether or
not they are Australian citizens. This should be made clear in the Bill. -
Recommendation 2: The functions and powers of a Commonwealth
Commissioner for Children and Young People should extend to ‘all children
in Australia’ regardless of their citizenship or residency
status.
5 A national
Children’s Commissioner should take a rights-based approach
-
The Australian Human Rights Commission welcomes section 4 of the Bill which
states that the principles of the CRC are to be applied in the exercise and
performance of duties of a Commonwealth Commissioner for Children and Young
People. -
The Australian Human Rights Commission believes that the rights, needs and
interests of children would be best protected by a Commonwealth Commissioner for
Children and Young People who works through a human rights framework, rather
than under a welfare model concerned predominantly with child protection. -
Working from a rights based perspective has a number of benefits. These
include that a rights based approach:-
Focuses on the rights of all children, including but not limited to,
the most disadvantaged. -
Considers children to be rights-holders rather than service recipients. For
each right there is a corresponding obligation on the part of government,
service providers and individuals to respect, promote, protect and fulfil that
right. -
Relies heavily on active and meaningful participation; children are not
viewed as passive recipients of welfare policies but are empowered as citizens
with a legitimate role to play in shaping the policies that affect their
lives. -
Improves accountability of government, institutions and individuals. For
example, a Commonwealth Commissioner for Children and Young People would do this
through advocacy, by scrutinising laws and policies and by assisting
institutions to change procedures and practices to be more sensitive to the
rights of children. Using a child-rights framework helps to ensure rights are
adequately considered in the decision making process and outcomes are more
responsive to the rights of children. -
Can draw on international standards and guidelines to assist in monitoring
and evaluating laws, policies and programs. -
Is able to address underlying power imbalances and systemic inequalities
that perpetuate breaches of children’s rights.
-
-
The Australian Human Rights Commission believes that human rights provide a
clear framework for promoting, and for ensuring accountability in respect of,
child wellbeing. Human rights outline the minimum standards necessary to ensure
the wellbeing of children – including the right to an adequate standard of
living, the right to health care, the right to education, the right to family
life, the right to protection from violence, and the right to participate in
one’s culture. -
The Commission believes that, through a human rights framework, a
Commonwealth Commissioner for Children and Young People could have a positive
impact on the wellbeing, healthy development and quality of life of all children
in Australia.
6 What would a national
Children’s Commissioner do?
-
In order to monitor the implementation of a State’s obligations under
the CRC, the Committee on the Rights of the Child (the Committee) has encouraged
all States Parties to establish the office of a Children’s Commissioner.
Australia has submitted two reports to the Committee. In its concluding
observations to both those reports, the Committee expressed concern that there
is no commissioner with a specific mandate for monitoring children’s
rights and no unit devoted to issues of children’s
rights:While acknowledging the valuable work of HREOC in the area
of children’s rights, the Committee is concerned that there is no
commissioner within HREOC devoted specifically to child
rights.[3] -
The Committee has recommended the following as roles and functions
appropriate to an independent Children’s
Commissioner:[4]-
monitoring, investigating and reporting on children’s rights under the
CRC, its Optional Protocols and other human rights instruments -
promoting respect for the views of children and ensuring children’s
opinions are expressed and heard -
supporting children who take cases to court and intervening in relevant
matters before the court -
promoting public understanding of children’s rights among government,
public agencies and the general public as well as in schools and
universities -
investigating, and providing effective remedies for, violations of
children’s rights by all public and private entities, either through
individual complaints received or of its own motion.
-
-
The Commission is broadly supportive of the functions and powers set out in
the Bill. -
This section of the submission discusses each of these functions with
reference to the provisions of the Bill.
6.1 Monitoring
-
A primary function of the Commonwealth Commissioner for Children and Young
People should be to monitor, investigate and report on the implementation of
children’s rights under the CRC. The monitoring role is referred to in
proposed section 9 (1)(a) of the Bill. This section could be improved by
reference to monitoring Australia’s compliance with the CRC, rather than
monitoring the ‘wellbeing’ of Australian children. -
A monitoring role might include:
-
reviewing proposed and existing laws, policies and resource allocations, and
practices relating to children and young people -
making recommendations to relevant Ministers about laws which should be made
or amended to ensure that the rights of children and young people are considered
and protected -
conducting inquiries and reporting to Parliament about children’s
rights issues, including through an own motion power -
establishing ongoing dialogue with providers of public services to families,
children and youth to ensure that services are delivered in a way that protects
the rights of children -
advocating for effective data collection on children’s health,
wellbeing, development and participation in order to measure the impact of laws,
policies and programs upon children and accurately monitor progress towards
implementation of children’s rights.
-
-
The monitoring role should include responsibility for monitoring the
implementation of Australia’s obligations under the two existing Optional
Protocols to the CRC. -
The current Bill proposes that the Commonwealth Commissioner for Children
and Young People prepare the Australian report to the United Nations Committee
on the Rights of the Child. The Australian Human Rights Commission is concerned
that this may undermine the independence of the Office of the Commonwealth
Commissioner for Children and Young People. -
Recommendation 3: The Australian Government should retain
responsibility for preparing reports to the United Nations Committee on the
Rights of the Child. The Commonwealth Commissioner for Children and Young People
should be able to prepare an independent report to the Committee should he or
she wish to do so.
6.2 Participation
-
International and Australian communities
recognise that children have a right to participate in decisions that affect
them.[5] The creation of a statutory
office of Commonwealth Commissioner for Children and Young People should enhance
the capacity of children to exercise their right to participate. -
The Commissioner’s Office should have responsibility for promoting
meaningful dialogue between children and government by developing mechanisms for
direct consultation. The Commission could also have a responsibility to speak on
behalf of children if there were insufficient mechanisms for children to
represent their own interests at the national level. -
The Commission welcomes that participation is an object (s 3(2)(d)) and
an underlying principle (s 4(d)) of the Commonwealth Commissioner for
Children and Young People Bill 2010. The Commission notes that proposed
section 9(1)(g) confers on the Commonwealth Commissioner for Children and
Young People the function of involving children in decisions that affect them.
The Commission further welcomes the duty of the Commonwealth Commissioner for
Children and Young People to consult with children and young people in
performing his or her functions (s 10).
6.3 Legal
Proceedings
-
The Commonwealth Commissioner for Children should have responsibility for:
-
assisting courts as amicus curiae by providing expert advice on human rights
issues in important cases impacting on the rights of children and young
people -
intervening in legal cases brought by individuals alleging a breach of
rights set out in the CRC as well as in legal cases with implications for the
enjoyment of the rights of children and young people at the systemic level.
-
-
The Commission welcomes the inclusion of proposed section 9(h) which
confers on the Commonwealth Commissioner for Children and Young People the power
to intervene in legal cases involving the rights of children and young people.
6.4 Education
-
Building community understanding about children’s rights should be an
important function of a Commonwealth Commissioner for Children and Young
People.[6] -
The Commissioner’s role should include responsibility for:
-
conducting research around children’s rights issues and developing
appropriate public education programs -
promoting understanding of children’s rights among children, young
people and the broader community, and in government and public agencies -
collaborating and coordinating with the community and business sectors and
existing state and territory children’s commissioners and children’s
guardians to develop and strengthen community understanding of children’s
rights.
-
-
The Commission welcomes proposed sections 9(1)(a), 9(1)(b) and 9(1)(f) which
confer on the Commonwealth Commissioner for Children and Young People broad
functions relating to the promotion and advancement of respect for
children’s rights in Australia.
6.5 Complaints
-
According to the United Nations Committee on the Rights of the Child, it is
important for an independent Children’s Commissioner to have the power to
receive and investigate complaints from children who feel that their rights have
been breached.[7] -
The Commission notes that the Commonwealth Commissioner for Children and
Young People Bill 2010 is silent with regard to a complaints mechanism. -
In Australia, children and young people can already make a complaint about
some human rights breaches. For example, children can make a complaint to the
Australian Human Rights Commission if they feel they have been discriminated
against on the grounds of age, race, sex or disability. The Australian Human
Rights Commission has a more limited mandate to investigate complaints where an
action by the Commonwealth is alleged to have breached or infringed a right
contained in the CRC.[8]The
Commission recommends that complaints regarding children’s rights continue
to be handled by the Australian Human Rights Commission under the statutory
provisions contained in the Australian Human Rights Commission Act 1986 (Cth).
7 Guardian of
unaccompanied minors who arrive in Australia without a visa
-
The Bill proposes that the Commonwealth Commissioner for Children and Young
People would have the function of ‘in appropriate cases, acting as the
legal guardian of unaccompanied children and young people who arrive in
Australia without the requisite visa or other authority for entry into
Australia’ (proposed s 9(1)(i)). -
In Australia, the Minister for Immigration is the legal guardian of
unaccompanied children seeking
asylum.[9] The Minister can delegate
those powers to any officer or authority of the Commonwealth or of any State or
Territory.[10] The guardianship of
unaccompanied children in immigration detention is routinely delegated to
Department of Immigration and Citizenship (DIAC) officers. The Commission has
for many years raised concerns about these
arrangements.[11] In the
Commission’s view, they create a fundamental conflict of interest. It is
not possible for the Minister or a DIAC officer to ensure that the best
interests of an unaccompanied minor are their primary consideration when they
are simultaneously the child’s legal guardian, the detaining authority and
the visa decision-maker. -
The Commission has repeatedly recommended that an independent legal guardian
be appointed for unaccompanied minors in immigration
detention.[12] -
If the Commonwealth Commissioner for Children and Young People is to become
the legal guardian of unaccompanied children in immigration detention, it is
important that the office is provided with sufficient resources and is able to
engage people with appropriate expertise to ensure that the role is adequately
performed. In addition, guardianship responsibilities should be delegated to
appropriately qualified individuals who reside in close proximity to places of
detention.
[1] The Committee on the Rights of
the Child, 40th Session, Concluding Observations: Australia,
20 October 2005; The Committee on the Rights of the Child, 16th Session, Concluding Observations: Australia, 21 October
1997.
[2] The Australian Human
Rights Commission has called for the establishment of a ‘national
Children’s Commissioner’. As the Bill uses the term Commonwealth
Commissioner for Children and Young People, this term will be used throughout
this submission.
[3] The Committee
on the Rights of the Child, 40th Session, Concluding Observations:
Australia, 20 October 2005; The Committee on the Rights of the Child,
16th Session, Concluding Observations: Australia, 21 October
1997.
[4] The Committee on the
Rights of the Child, General Comment No.
2.
[5] See for example the
Australian Law Reform Commission Report 84, Seen and Heard: priority for
children in the legal process, 1997, chapter 3, para 5.25.
[6] The Committee on the Rights of
the Child, General measures of implementation of the Convention on the Rights
of the Child (arts. 4, 42 and 44, para.6): General Comment No 5, CRC/GC/2003/5, 27 November
2003.
[7] The Committee on the
Rights of the Child, The Role of Independent National Human Rights
Institutions in the Protection and Promotion of the Rights of the Child: General
Comment No. 2, CRC/GC/2002/2, 15 November
2002.
[8] Under the Australian
Human Rights Commission Act 1986.
[9] See Immigration
(Guardianship of Children) Act 1946 (Cth), s
6.
[10] See Immigration
(Guardianship of Children) Act 1946 (Cth), s
5.
[11] See Australian Human
Rights Commission, A last resort?, National Inquiry into Children in
Immigration Detention (2004) (A last resort), chapter
14.
[12] See A last resort,
chapters 14, 17.