These guidelines have received general agreement from individuals and groups within Australia and are supported by the experience from similar positions in other countries. 6.2.1 Independent DCI considers that the Commissioner for Children and Young People in Australia must be an independent statutory position. The position must be independent of government because, in order to be effective, i.e. it must be able to criticise and lobby governments for change where necessary- it should not be subject to political pressure or party politics. Other proposals for positions advocating the rights of children and young people (e.g. the creation of a unit within the Office of the Prime Minister and Cabinet) have been criticised due to the lack of independence such a position or unit would possess. This is not to say that positions such as a unit within the Office of the Prime Minister and Cabinet are not of prime importance; DCI emphasises the importance of a range of complementary mechanisms to ensure the rights of children - but that such a position cannot fulfill the role of monitoring, promoting and advancing the rights of children as effectively as an independent commissioner. Support for an independent position. There is widespread agreement across Australia highlighting the need to ensure that the position is independent. Proposals put forward in Australia for the creation of such a position have emphasized the importance of independence. ‘It is crucial that any Commissioner for Children be absolutely independent of government. As an office devoted to the promotion and protection of human rights, it is inevitable that a Commissioner may criticise government policy and practice. There are few governments in the world that easily accept being criticised. Without complete independence political pressure can be brought to bear on a Commissioner.’ This view is also shared by prominent Australians with an interest in the area and by submissions received by the Joint Standing Committee on Treaties Inquiry into the Status of the United Nations Convention on the Rights of the Child. The need for the position to be independent is also support by experience overseas. For example, Mr Laurie O’Reilly, the late Commissioner for Children in New Zealand, argued strongly for increased independence to be able to carry out the role more effectively. This view is also held by the present NZ Commissioner. While in reality complete independence is not possible, ‘as far as possible’ the position should be ‘independent of the executive, legislature and political organisations’. How do we ensure independence? DCI strongly endorses the various safeguards for ensuring independence enunciated by UNICEF. UNICEF proposed the following safeguards:
DCI proposes that these safeguards of independence must be incorporated in the creation of the position of Commissioner for Children and Young People in Australia. 6.2.2 Permanent statutory authority DCI proposes that the Commissioner for Children and Young People must be established as an independent statutory authority ‘established by legislature, and given authority to carry out its functions’. There is widespread support for this position (although different proposals suggest different locations and powers, there is agreement that the Commissioner should be an independent statutory authority). The tenure of the position as Commissioner for Children and Young People must be secure. Appointment needs to be for a period of five years with the possibility of reappointment after this time. This is the period of appointment of commissioners at HREOC. The Commissioner must also have certain statutory powers and authority if he/she is to be effective. These powers of authority are defined in the roles associated with the position. 6.2.3 An exclusive focus on children and young people DCI proposes that the Commissioner for Children and Young People must have an exclusive focus on children and young people and their rights. Some arguments have supported the integration of the function of a children’s commissioner within a wider framework of a human rights body, for example within HREOC, not as a specialist commissioner, but as part of the work of the commission in general. It is suggested that this approach would:
Despite these arguments, the case for a Commissioner for Children and Young People to have an exclusive focus on children is considered essential by many prominent individuals and groups. The alternative view is that children will not be accorded the recognition or visibility without a commitment to an exclusive focus. Furthermore children do not have a high political profile, their needs and interest may well be overlooked when competing with those of adults. It must also be remembered that the CROC is already an instrument to which the HREOC must have reference. In this regard HREOC has performed very important work in the area of promoting and conducting inquiries into the right’s of children and young people in Australia. However, as has been recognised by HREOC, despite being given this additional role, HREOC was not allocated any additional resources to focus on the rights of children and young people. In addition in more recent years the resources allocated to HREOC to perform its important role has been substantially reduced. DCI submits that the responsibility HREOC has in reference to CROC, although significant work has been performed, does not satisfy the ongoing commitment that could be ensured by a specific Commissioner for Children and Young People or Australia’s obligations under the CROC. DCI considers that HREOC, with its many competing interests and substantially reduced resources is unable to provide the specific attention necessary to protecting the rights of children in Australia. Furthermore, as the recognition of the rights of children and young people in Australia is a recent development, which has generated considerable controversy and debate (much of which has been fueled by misinformation about what CROC actually represents), there are strong arguments that a specialist Commissioner must be established. A specialist Commissioner would have the capacity to perform an important educative role about the rights of children and young people. As has been noted earlier in this paper (and in other reports), the voices of children and young people are seldom heard and often silenced by the needs and demands of adults. A Commissioner for Children and Young People would be able to listen to the needs of children and young people and to promote and ensure that they are able to exercise their rights in Australian society and institutions. 6.2.4 Adequate Resources The Parliament, rather than the government, should be responsible for deciding the funding allocation . Funding should not be determined within party politics but should be a commitment of all members of Parliament. There is support for this position. Children’s rights must not be treated as a party political matter. It is DCI’s view that the challenges ahead to create a human rights environment for children will take many years and must be maintained through changes of government and government policy. This is consistent with the position being accountable to Parliament and not part of the government. In addition ‘(t)he budgetary allocation ought to be commensurate with the nature of the Commissioner’s responsibilities. Consideration should be given to creating a statutory mandate for a minimum allocation’.
6.2.5 The establishment of complementary positions in each State and Territory While there is an essential need for a Commissioner for Children and Young People at a federal level, the bulk of services and laws which affect children are implemented at State and Territory levels. ‘The States and Territories are responsible for law, policy and service delivery in significant areas of children’s lives. Federal advocacy, complaints and co-ordination bodies therefore must be complemented by State and Territory agencies closer to children’s services and issues at regional and local levels.’ In order for the implementation of the CROC to be effective in Australia there must be cooperative arrangements between the Federal and State and Territory levels of government. ‘If a Children’s Commissioner is to have a significant influence, it is imperative that Commissioners be appointed for each State and Territory as well as at Commonwealth level’. Support for complementary State and Territory positions. This view is also shared by many other submissions received by the Joint Standing Committee on Treaties and by the current Commissioner for Children in Queensland.
6.2.6 Location for the office of the Commissioner for Children and Young People DCI proposes that HREOC is the preferred location for the Commissioner for Children and Young People. The location of the Commissioner for Children and Young People within HREOC has received the most support. The recent ALRC and HREOC inquiry also received a number of submissions, which supported this as the best location. The report also noted that various commentators also adopt the view. Advantages of location in HREOC. There are a number of advantages associated with locating the Commissioner for Children and Young People within the present HREOC structure. These advantages include:
Concern about location in HREOC. Some organisations, while seeing the advantages of locating the office within HREOC, have expressed concerns. For example, given that the HREOC budget has recently been cut by some 43%, ‘there is concern that the organisation will [not] be able to effectively deal with its existing responsibilities’. DCI shares these concerns and emphasises that the funding allocation, as discussed above, must be adequate for the Commissioner for Children and Young People to perform his/her functions. A further concern which has been raised is that ‘there would be too much emphasis on sex, race and disability that to have another commissioner there to compete for scarce resources will simply not be effective’. DCI, however submits that if the Commissioner for Children and Young People is established as a separate Commissioner, then the experience and focus of HREOC in these other areas can be a useful resource to the Commissioner for Children and Young People. It also demonstrates that children’s rights are equivalent rights to those of adults. It may also allow for the possibility of joint investigations that can examine multiple forms of disadvantage (e.g. children’s rights and disability). UNICEF argues that if the office is to be located within HREOC, it is important that the Commissioner be ‘a separate entity created by a separate statute with wider statutory functions and powers than those presently enjoyed by HREOC’. DCI supports this position and considers that this is vital for the Commissioner for Children and Young People’s effectiveness. It is also necessary that the recently reduced resources of HREOC would need to be enhanced. 6.3 FUNCTIONS, ROLES & RESPONSIBILITIES OF A COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE IN AUSTRALIA 6.3.1 Framework for the Commissioner for Children and Young People The CROC would provide the guiding frame of reference for the work to be performed by the proposed Commissioner for Children and Young People. Given the status and range of the Convention it should provide a key statement of principles to guide the Commissioner. However this function should have reference to other UN Conventions as well. While the CROC will provide the most useful background for the work of the Commissioner, it must be recognised that there are ‘other Conventions Australia has entered into [which] provide more extensive rights’. CROC itself makes reference to the fact that the rights articulated in it are not intended to ‘undermine’ or restrict governments from instituting laws and policies or following international human rights instruments which are more conducive to the realisation of the rights of the child. Other international treaties or agreements signed by Australia would also guide the work of the commissioner, as they also ‘apply specifically to children and young people or lay down rights which apply to children as much as to adults’. They include;
6.3.2 Summary of functions, roles and responsibilities DCI considers that the following functions, roles and responsibilities are essential if the Commissioner for Children and Young People is to be effective in ensuring and promoting the rights of children and young people in Australia:
6.3.3 Review of proposed and existing laws, policies, resources allocations and practices relating to children DCI proposes that the Commissioner for Children and Young People possess the function of reviewing all proposed and existing legislation, policies, resource allocations and practices to ensure that they respect and promote the rights of children and young people.. This proposed function is supported by a number of other commentators. The Commissioner should then report on his/her findings and present recommendations to ensure compliance with Australia’s international obligations to children and young people Obligation under CROC. Article 4 of the CROC obliges parties to the Convention to ....undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in this Convention... This requires that parties to the Convention ensure that laws and administrative procedures are consistent with the rights set out in CROC. The establishment of an independent commissioner is widely seen as the central means to guide and assist this process. When domestic legislation is seen to be consistent with these standards, the role of the commissioner will be to monitor the extent to which legislation is implemented and resourced effectively in practice. Where it is not, or it becomes inadequate with the passage of time, the focus will be on seeking further legislative and policy change. Current state of compliance. The ALRC and HREOC report found that although many laws in Australia do comply with the Convention, ‘there are still significant areas of law and practice that do not conform’ and there are laws which are in fact in direct ‘violation’ of CROC. The ALRC and HREOC further noted that the common practice of Australian Governments was to assess compliance before ratification takes place. This did not happen in the case of CROC. The recommendations of the Committee on the Rights of the Child, following examination of Australia’s report to that committee also placed emphasis on the importance of the continuing examination of current and proposed legislation: A comprehensive review of the conformity of the existing body of legislation with CROC is a necessary first step if Australia’s commitment and indeed obligation under international law is to be honoured......As well as an initial review of existing legislation, there is a need for a process whereby all future legislation to be scrutinised before enactment to ensure compliance with CROC. Why is such a function necessary? If a commissioner is to serve as an advocate for children’s rights, a key component of the work must lie in identifying and highlighting ways in which current and proposed laws, policies, resource allocations or practices take account of the rights and interests of children and young people and suggest amendments where appropriate. This function would involve verifying laws and their implementation in respect to their compliance with Australia’s obligation under CROC. In addition the fact that no proper assessment or review of existing legislation was undertaken prior to ratification of CROC, and the continuing existence of laws and practices which are against the terms of the Convention, both emphasises the further need for a Children and Young Peoples’ Commissioner to possess this power as a matter of some urgency. This function is endorsed by the UN Committee on the Rights of the Child. The Committee on the Rights of the Child supports the establishment of procedures to review and analyse policies in relation to their impact on children. For example, the Committee’s report to New Zealand noted; with interest the recently established procedure of the State party to have an evaluation of the impact on children of all legislation affecting children that is submitted to Cabinet. It welcomes such a child impact analysis as part of the legislative process. Function should be in respect of both existing and proposed legislation. It is important for the proposed Children and Young Peoples’ Commissioner have the function of examining both laws which are currently in operation as well as those which are being proposed by governments. It is better to influence policy while it is being conceived rather than after it has been put into practice. The best way to ensure that new legislation takes into account the rights and interests of children and young people would be for the department involved to consult the Commissioner at an early stage (and certainly at or before the point of introduction into Parliament). The Commissioner would analyse and comment on proposed new laws and policies in terms of their likely impact on children and young people. DCI notes that the HREOC Act includes the function of examining enactments and in certain circumstances proposed enactments. Another example is the function provided under the Disability Discrimination Act 1992 (Cth): to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments are, or would be, inconsistent with or contrary to the objects of this Act, and to report to the Minister the results of any such examination. In respect of this type of clause DCI submits that as the rights of children is a new area of rights to be ensured and promoted in Australia that such a function should not be limited by the Minister’s approval in respect of proposed enactments. This is particularly emphasised given the lack of activity in implementing the CROC in Australia or in assessing compliance. [compliance with CROC]...’clearly represents an ongoing program, rather than being a once and for all ‘set and forget’ instrument’. The inclusion of a monitoring role in respect of resource allocations recognises that such allocations are a useful indicator of governmental commitment. Moreover, the rights accorded by legislation can be undermined by the failure to provide adequate resourcing. 6.3.4 Recommend to the Minister new laws The role of the Commissioner for Children and Young People should not be limited to examining current or proposed laws. There should also be a function which allows for the Commissioner to make recommendations to the Minister as to laws which should be made to protect and promote the rights of children . A similar power is contained in the Disability Discrimination Act 1992 (Cth): on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination on the ground of disability. This is an important function for the Commissioner for Children and Young People to possess given the other roles and functions which are recommended (e.g. the conduct of research, inquiry and consultation with children). It provides the Commissioner with a progressive function, rather than simply reacting to the current or proposed laws of the government. This function is also significant given the lack of power children and young people possess within the political system in Australia (where for example children cannot vote) and there is little opportunity for children and young people to articulate and advocate for their own rights and entitlements. 6.3.5 Power to conduct inquiries DCI recommends the proposed Commissioner for Children and Young People should have the power to conduct wide ranging inquiries into the status of children and young people in Australia. This power is supported by numerous commentators and is integral to the Commissioner’s ability to monitor the extent to which children and young people enjoy their rights in Australia. In order to effectively carry out this function, the Commissioner must also possess the power to access departmental files and records, and to require the production of documents, require that persons give oral or written evidence and to furnish information. After carrying out such inquiries the Commissioner must provide a report on his or her findings to Parliament. Such a report must also be made available to the general public. The report should contain recommendations as to changes in law, policy and practice where such changes are necessary in order for Australia to ensure and promote the rights of children and young people. The government should be required to table the report in Parliament and to make a formal response to the report and the recommendations contained in it within a specified time. 6.3.6 Reports to Parliament The Commissioner would have the responsibility of making a number of reports to Parliament on issues relating to the rights of children and young people. Some of these have already been mentioned above in relation to the findings after reviewing laws and practices, or after the conduct of an inquiry. The reporting function possessed by HREOC would be appropriate as expressed below: on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declaration or of any relevant international instrument. This reporting role would also involve monitoring of the rights as set out under the CROC. The Convention provides a useful framework for assessing the status of children in Australian society and would allow a Commissioner to assess whether they are receiving access to an appropriate level of services and resources. Annual reports. The Commissioner should also be required to make annual reports to Parliament not only on the work performed by the Commissioner but also on the state of Australia’s children and young people. An annual reporting function ensures that the state of children in Australia is brought to the attention of Parliament on a regular basis. It ensures that the rights of children and young people are always on the agenda. 6.3.7 Conduct research around issues relevant to the office There is a lack of relevant data available in Australia to inform policy and practice on issues concerning children and youth. To be effective in the position, a commissioner needs access to valid statistics and data analysis on conditions for children and young people in Australia. The commission office must have the capacity to conduct research around issues relevant to the office. This research could be undertaken in conjunction with relevant State and Territory organisations and the ABS. Requirements of the UN Committee on the Rights of the Child. The Committee on the Rights of the Child requests detailed statistical information to be provided by each country when filing annual reports. The following points address the structural requirements for a research program; 1. Each State Party should have a comprehensive data system for assessment of the needs of the nation’s children and evaluation of the effectiveness of the nation’s response. 2. For a data system to be comprehensive, it should provide the capacity for (a) needs assessment and evaluation research in all of the domains covered by the Convention, (b) generation of such knowledge across time (pursuant, e.g. to the requirement of periodic report; see article 44) and (c) generation of such knowledge in regard to children in various personal (e.g. children with disabilities; article 23) and social (e.g. refugee and asylum-seeking children; article 22) contexts. 3. The research programme should include provisions for ongoing, systematic collection of perceptions and attitudes and reports of experiences of children themselves. 4. Such provisions (e.g. a system of focus groups and periodic social indicator surveys of representative samples) should include affirmative efforts to gather information and opinions from children in various personal and social contexts. 5. To meet this objective, researchers sometimes will have to act more like investigative journalists than convention scholars (e.g. assessment of conditions of confinement of children deprived of liberty; article 37). 6. Because many of the rights under the Convention affect day-to-day practice of local agencies (e.g. schools), the research programme should include neighbourhood as well as societal-level studies (e.g. ethnographic studies of children’s participation in the community). 7. Mechanisms should be available for diffusion of results among children themselves and the adult general public (article 42), specialists in various domains, the organ charged with the national report to the UN Committee on the Rights of the Child (article 44) and policy-makers. 8. To ensue comprehensiveness of the research programme and to permit assessment of national programmes, UNICEF, other relevant international organizations (e.g. UNESCO), and leading scientific societies should develop a model research programme for implementation of the convention and provide technical assistance and, when necessary, financial support for its fulfillment (cf. article 45). 9. University-based centres with strong ties to relevant government agencies and NGOs provide excellent settings for development and coordination of research programmes and provision of training and diffusion of knowledge that results from such programmes. 10. In large nations, such centres (whether in universities, government research agencies, independent institutes, or advocacy offices for children) might be better located at the state or provincial level than at the national or federal level. 11. Legislative or regulatory authority should be available to ensure the level of access to records and people that is necessary for the research programme; such authority should include “whistle blower” protection for informants and perhaps should include at least limited subpoena power. 6.3.8 Promotion of Varied and Targeted Public Education Programs All countries that have ratified the CROC have obligation under Article 42 to promote awareness of the Convention amongst the general community. By Article 42 the Australian government made a commitment to make the principles of the Convention widely known to adults and children. To date, obligation under this Article has largely been ignored in Australia. The DCI emphasises that the education of the general community, children and adults, about the contents and rights contained in CROC is of vital importance. This is particularly so given the amount of misinformation currently circulating in the community about the effects of CROC. The bulk of submissions received by the Joint Standing Committee on Treaties Inquiry into the Status of CROC demonstrated clearly the lack of public awareness concerning the nature of the Convention. The commissioner must have a broad public education mandate. In doing so, it must have special regard to the important role of parents as agents of advocacy for their children and the significance of early intervention as a mechanism for preventing the abuse of children’s rights, particularly the rights of younger children. The community awareness and public education programs need to be broader than issues related to the Convention. An important aspect of this part of the role would be ‘to improve the status of children and young people by encouraging a view of children and young people as important members of society’. The Committee notes that the Convention and its principles are not generally known to the public, although the notion of rights is generally spared. The committee regrets that there seems to be lack of adequate understanding in some quarters of the community of the principles of the Convention, as well as its holistic and interrelated approach, and the importance that the Convention places on the role of the family. The Committee recommends that awareness raising campaigns on the Convention on the Rights of the Child be conducted, with a particular focus on its general principles, and on the importance the Convention places on the role of the family. The Committee suggests that the Convention be disseminated also in languages that are used by Aboriginal and Torres Strait Islanders, and by persons of non-English speaking background. The Committee also suggests that rights of the child be incorporated in school curricula. It further recommends that the Convention on the Rights of the child be incorporated in the training provided to law enforcement officials, judicial personnel, teachers, social workers, care takers and medical personnel.. 6.3.9 Advocacy: A Public voice for children and young people The advocacy role of commissioners for children around the world is recognised as a vital and effective function in its own right. Many groups and individuals in Australia have emphasized the importance of advocacy as one of the key functions of the Commissioner. The DCI strongly supports this important role for the proposed Commissioner for Children and Young People. The Commissioner must be an advocate for children at a broad policy and practice level. He/she must also promote the development of appropriate advocacy services for individual children. This would include the encouragement of peer advocacy, with children and young people acting as effective advocates for each other, and the development of structures to further this objective. “Advocacy for children is about systems and individuals recognising the rights and needs of all children and young people and responding to those rights and needs. It also involves allowing children and young people to have a say in decisions that are likely to affect them. Children advocacy is not about undermining the role of parents and families, nor is it about denying children the fact of childhood and their need for protection. It is about taking a proactive approach to ensure that all children have the opportunity to reach their full potential as human beings”. 6.3.10 Develop mechanisms to consult with children and young people The task of the Commissioner for Children and Young People to promote children’s rights must be informed directly by the experience of children and young people themselves, and not rely on presumptions about what children think and feel. Any consultative mechanisms must ensure that it is accessible to all children and young people (Aboriginal and Torres Strait Islanders, non-English speaking background, gay and lesbian and children with disabilities). Children and young people need to have opportunities to have direct input into the work of the Commissioner and related activities. The Commissioner would need to develop ‘structures for meaningful dialogue with children and young people which would allow them to be active participants in the processes and decision-making that affect their lives’. These structures need to be appropriate to children’s age and maturity and which promote their individual and social development. Strategies to facilitate this process could include;
6.3.11 Power to intervene in cases involving the rights of children and young people DCI submits that it is important the proposed Commissioner for Children and Young People have the power to intervene in cases involving the rights of children and young people. Similar powers are held by other commissioners at the federal level. For example the HREOC Act provides that the Commission has the following function: where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, intervene in proceedings that involve human rights issues. The power to intervene in legal proceedings by the Commissioner also enhances the educative role of the position as it allows for the Commissioner to put his/her expertise within the operation of the laws in Australia. It is an important mechanism in addressing systemic issues relating to the rights of children. Such a power must not be limited by seeking the approval of the federal Attorney General in order to be able to exercise it. The Commissioner should also have the power to...participate in legal proceedings in his/her own name whenever she/he believes it is the best way to promote the interests of children and young people. This could obviate the need for litigation to be conducted by specific individuals, which may be particularly difficult or unwelcome for children and young people. Limitations of an individual complaints based system. The DCI does not recommend that the Commissioner for Children and Young People handle individual complaints. The reasons for this approach are numerous and include:
This position is supported by a number of other commentators. In other areas the individual complaint based focus has been criticised as being unable to address more systematic and institutionalised forms of discrimination, its consumption of resources, and its traditional utilisation of private methods of resolution such as conciliation which has a limited capacity to educate the wider community about human rights and discrimination. See Also:
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