ºÚÁÏÇ鱨վ

Inquiry into the Commonwealth Commissioner for ºÚÁÏÇ鱨վ and Young People Bill
2010

ºÚÁÏÇ鱨վ
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 ºÚÁÏÇ鱨վ’s Commissioner?
• 5 A national ºÚÁÏÇ鱨վ’s Commissioner should take a rights-based approach
• 6 What would a national ºÚÁÏÇ鱨վ’s Commissioner do?
  • 6.1 Monitoring
  • 6.2 Participation
  • 6.3 Legal Proceedings
  • 6.4 Education
  • 6.5 Complaints
• 7 Guardian of unaccompanied minors who arrive in Australia without a visa

1 Introduction

1. The ºÚÁÏÇ鱨վ (the Commission) makes this
   submission to the Senate Legal and Constitutional Affairs Committee in its
   inquiry into the Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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.

2. The Commission has for a number of years supported the establishment of the
   Office of a national ºÚÁÏÇ鱨վ’s Commissioner as an important way of better
   respecting and promoting the rights of all children in Australia.

3. 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.

4. 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 ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ 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

5. The Commission would welcome the establishment of the office of a
   Commonwealth Commissioner for ºÚÁÏÇ鱨վ and Young
   People.^[2] The Australian Human Rights
   Commission believes that a Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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.

6. The ºÚÁÏÇ鱨վ believes that the key features of a
   national ºÚÁÏÇ鱨վ’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

7. The Commission recommends that:

   • Recommendation 1: A statutory office of Commonwealth Commissioner for
     ºÚÁÏÇ鱨վ and Young People should be established.

   • Recommendation 2: The functions and powers of a Commonwealth Commissioner
     for ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ’s Commissioner?

8. 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.

9. 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.

10. A Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ
    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.

11. Recommendation 1: A statutory office of Commonwealth Commissioner for
    ºÚÁÏÇ鱨վ and Young People should be established.

12. 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.

13. Recommendation 2: The functions and powers of a Commonwealth
    Commissioner for ºÚÁÏÇ鱨վ and Young People should extend to ‘all children
    in Australia’ regardless of their citizenship or residency
    status.

5 A national
ºÚÁÏÇ鱨վ’s Commissioner should take a rights-based approach

14. The ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ and Young
    People.

15. The ºÚÁÏÇ鱨վ believes that the rights, needs and
    interests of children would be best protected by a Commonwealth Commissioner for
    ºÚÁÏÇ鱨վ and Young People who works through a human rights framework, rather
    than under a welfare model concerned predominantly with child protection.

16. 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 ºÚÁÏÇ鱨վ 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.

17. The ºÚÁÏÇ鱨վ 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.

18. The Commission believes that, through a human rights framework, a
    Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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
ºÚÁÏÇ鱨վ’s Commissioner do?

19. 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 ºÚÁÏÇ鱨վ’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]

20. The Committee has recommended the following as roles and functions
    appropriate to an independent ºÚÁÏÇ鱨վ’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.

21. The Commission is broadly supportive of the functions and powers set out in
    the Bill.

22. This section of the submission discusses each of these functions with
    reference to the provisions of the Bill.

6.1 Monitoring

23. A primary function of the Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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.

24. 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.

25. The monitoring role should include responsibility for monitoring the
    implementation of Australia’s obligations under the two existing Optional
    Protocols to the CRC.

26. The current Bill proposes that the Commonwealth Commissioner for ºÚÁÏÇ鱨վ
    and Young People prepare the Australian report to the United Nations Committee
    on the Rights of the Child. The ºÚÁÏÇ鱨վ is concerned
    that this may undermine the independence of the Office of the Commonwealth
    Commissioner for ºÚÁÏÇ鱨վ and Young People.

27. 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 ºÚÁÏÇ鱨վ 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

28. 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 ºÚÁÏÇ鱨վ and Young People should enhance
    the capacity of children to exercise their right to participate.

29. 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.

30. The Commission welcomes that participation is an object (s 3(2)(d)) and
    an underlying principle (s 4(d)) of the Commonwealth Commissioner for
    ºÚÁÏÇ鱨վ and Young People Bill 2010. The Commission notes that proposed
    section 9(1)(g) confers on the Commonwealth Commissioner for ºÚÁÏÇ鱨վ and
    Young People the function of involving children in decisions that affect them.
    The Commission further welcomes the duty of the Commonwealth Commissioner for
    ºÚÁÏÇ鱨վ and Young People to consult with children and young people in
    performing his or her functions (s 10).

6.3 Legal
Proceedings

31. The Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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.

32. The Commission welcomes the inclusion of proposed section 9(h) which
    confers on the Commonwealth Commissioner for ºÚÁÏÇ鱨վ and Young People the power
    to intervene in legal cases involving the rights of children and young people.

6.4 Education

33. Building community understanding about children’s rights should be an
    important function of a Commonwealth Commissioner for ºÚÁÏÇ鱨վ and Young
    People.^[6]

34. 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.

35. The Commission welcomes proposed sections 9(1)(a), 9(1)(b) and 9(1)(f) which
    confer on the Commonwealth Commissioner for ºÚÁÏÇ鱨վ and Young People broad
    functions relating to the promotion and advancement of respect for
    children’s rights in Australia.

6.5 Complaints

36. According to the United Nations Committee on the Rights of the Child, it is
    important for an independent ºÚÁÏÇ鱨վ’s Commissioner to have the power to
    receive and investigate complaints from children who feel that their rights have
    been breached.^[7]

37. The Commission notes that the Commonwealth Commissioner for ºÚÁÏÇ鱨վ and
    Young People Bill 2010 is silent with regard to a complaints mechanism.

38. 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
    ºÚÁÏÇ鱨վ 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 ºÚÁÏÇ鱨վ under the statutory
    provisions contained in the ºÚÁÏÇ鱨վ Act 1986 (Cth).

7 Guardian of
unaccompanied minors who arrive in Australia without a visa

39. The Bill proposes that the Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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)).

40. 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.

41. The Commission has repeatedly recommended that an independent legal guardian
    be appointed for unaccompanied minors in immigration
    detention.^[12]

42. If the Commonwealth Commissioner for ºÚÁÏÇ鱨վ 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, 40^th Session, Concluding Observations: Australia,
20 October 2005; The Committee on the Rights of the Child, 16^th Session, Concluding Observations: Australia, 21 October
1997.

^[2] The Australian Human
Rights Commission has called for the establishment of a ‘national
ºÚÁÏÇ鱨վ’s Commissioner’. As the Bill uses the term Commonwealth
Commissioner for ºÚÁÏÇ鱨վ and Young People, this term will be used throughout
this submission.

^[3] The Committee
on the Rights of the Child, 40^th Session, Concluding Observations:
Australia, 20 October 2005; The Committee on the Rights of the Child,
16^th 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 ºÚÁÏÇ鱨վ) Act 1946 (Cth), s
6.

^[10] See Immigration
(Guardianship of ºÚÁÏÇ鱨վ) Act 1946 (Cth), s
5.

^[11] See Australian Human
Rights Commission, A last resort?, National Inquiry into ºÚÁÏÇ鱨վ in
Immigration Detention (2004) (A last resort), chapter
14.

^[12] See A last resort,
chapters 14, 17.