Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I rise to provide a contribution to this debate on the Commonwealth Commissioner for Children and Young People Bill 2010, which, if passed, will establish the Commonwealth Commissioner for Children and Young People. There is no doubt that Senator Siewert has outlined a range of facts and figures before us today that do highlight that in this country we have got some work to do in relation to protecting and guiding and looking after the children under not only our care but the care of the states and territories, whether it is under state and territory legislation or Commonwealth legislation.

This bill was first introduced back in September 2010. In fact, I think it might have been earlier than that, before the 2010 election. It was reintroduced after the 2010 election and at that time the Selection of Bills Committee sent it off to the Senate Legal and Constitutional Committee, which I chair. We held an inquiry into this piece of legislation during 2011. From memory, we got 93 submissions. What I want to do today is take the Senate through the outcome of the inquiry. At the end of the day basically everyone said, 'We certainly do need a children's commissioner in this country.' There was overwhelming support for the concept, the idea and the position. But there was not overwhelming support for some of the measures in this bill, and I will take you through some of those in the moment.

The purpose of this bill is to establish an independent statutory office of the Commonwealth Commissioner for Children and Young People. The purpose of the office will be to recognise and advocate for the rights and needs of children and young people in Australia and to ensure that Australia's domestic and international human rights obligations are upheld. I noticed, reading very quickly a moment ago, that the amendments Senator Hanson-Young has now circulated suggest that it should not be an independent statutory office but should be part of the Australian Human Rights Commission. That is what leads us to the very nature of the problem with this legislation, because there was discussion during the inquiry on whether it should be a commission or a commissioner—should it be an independent statutory office or should it in fact be part of the Human Rights Commission. But I think at the end of the day what everyone felt was that there needed to be much broader discussion about the benefits of all those options. What we have today is a decision by the Greens and by Senator Hanson-Young that the best option is to actually put it inside the Australian Human Rights Commission. I am still unsure whether that is the best way to go. I think it is evident that there is a need for broader consultation around the country about what the best thing to do is. If we are going to do this—and we need to do this—we certainly need to do it in such a way that it stands for all time. We do not want to be in the position where, after a couple of years, we say: 'Maybe that was not the best way to do it. Maybe we ought to have an independent office.' That signals to me that we should not be rushing through this bill or the proposed amendments and that there needs to be further time to consult with all of the parties in the industry—not just the 93 who made submissions to the inquiry. We need a broader consultation about the best way to go.

There is no doubt at all that the establishment of the Commonwealth Com­missioner for Children and Young People would help move our national approach beyond the narrow focus on neglect and abuse that dominates much of the public dialogue. In her speech, Senator Siewert raised the issues of low participation rates in early childhood education and the problems faced by children with disabilities. But I do not think it is just about neglect and abuse; I think it is also about safety and wellbeing—other matters that were raised during the committee's inquiry.

The concept of a national commissioner is not new; it has been canvassed by community organisations and advocacy groups for a number of years. Even in opposition, way back in 2003 when Nicola Roxon was our shadow Attorney-General, we had the establishment of a children's commissioner on our policy books and platform. We even produced draft legislation back then—the A Better Future for our Kids Bill 2003 was tabled by us.

There is now a need to have the states and territories come on board and that is in the process of happening through COAG. The National Framework for Protecting Australia's Children 2009 to 2020—so we are talking about an 11-year plan here, now called 'the national framework'—was endorsed by COAG in April 2010. It was developed by a dedicated working group of the Community and Disability Services Ministers' Advisory Council. They under­took an extensive consultation process involving the states and territories, non-government organisations, academics, child protection practitioners, carers and young people. That is the context in which the federal government is now working.

It should be noted that all states and territories in Australia have either a commissioner or a guardian for children and young people—even the Northern Territory, my home base. But the roles and responsi­bilities of those commissioners or guardians vary considerably across jurisdictions. In some ways that is beneficial, I think. However, if you are going to lay a federal children's commissioner over the top of that, with associated issues of how that federal commissioner would interact with the states and territories, it could well become problematic.

I draw people's attention to the report of the Senate Legal and Constitutional Affairs Legislation Committee into this bill. It was tabled in May 2011. At the back, it provides a terrific summary of the role of the children's commissioner in each state and territory. If you are interested in a comparison of what each state and territory does in the various areas of responsibility, it is laid out quite well in the back of that report.

National commissioners have been appointed in other countries around the world and these are examples we ought to be looking at. Those countries include Norway, New Zealand, Sweden and the United Kingdom. Not a lot of countries have yet embarked on this process. We would become, perhaps, only the fifth country in the world to do it. While there is a need to do it, there is not a lot of precedent out there to tell us what is working and what is not working.

I mentioned the national framework that was endorsed by COAG. As part of that, the government is exploring the potential role of a national children's commissioner. The national framework will be implemented through a series of three-year action plans over the 11 years of the framework. The first three-year action plan, going from 2009 to 2012—due to end at the end of this year—identified 12 national priorities, including advocating nationally for children and young people. This national priority—one of the 12 national priorities—is about exploring the potential to establish a position of Common­wealth Commissioner for Children and Young People. Progress on this priority was covered in a 2009-10 report to the Council for Australian Governments, entitled Protecting children is everyone's business: national framework for protecting Australia's children 2009-2020. So there is work being done. The Greens may argue that perhaps the work is not being done quickly enough, but I think we need to do it thoroughly and properly.

During our inquiry into the establishment of a Commonwealth Commissioner for Children and Young People, we identified about seven issues that have not been resolved in this legislation. The amendments we have seen today are, I think, trying to resolve some of those issues. There are complexities involved in establishing this new position, however, and I worry about the wisdom of considering amendments which have just been tabled on the day we are debating the bill without those amendments first going back out into the community for broader discussion.

One of the issues identified was, as I have said, whether there is a need for a Commonwealth Commissioner for Children and Young People and whether the bill addresses such need. Clearly, as I said, our inquiry overwhelmingly concluded, based on all of the submissions presented by the various groups and stakeholders, that, yes, there is a need for such a position. So you tick that box. But there was no agreement about how the commission should be established—whether it should be a com­missioner, a commission or a dedicated com­missioner under the Human Rights Commission. There were varying views about that. Some witnesses felt that if in fact it was under the Australian Human Rights Commission there would be constraints about what you could do. Some felt that if it were a commission then it would have much wider powers to do a whole range of things like investigate, research and advocate. Others thought there should just be a commissioner as a statutory authority.

One of the other issues is the actual adequacy of the bill that is before the Senate. Despite support for the establishment of a Commonwealth commissioner, a number of the submitters actually questioned whether the framework provided in the bill was appropriate. That went to a whole range of suggestions that the bill ought to be strengthened and enhanced to really articulate the operation, functions and powers of the Commonwealth commissioner. Others suggested that there needed to be further consultation on the bill, and that even consultation with children needed to be undertaken before this legislation was put through. Some submitters thought that the proposed model outlined in this bill should not proceed. Some submitters argued that the role and functions provided in the legislation were limited and were unlikely to provide the commissioner with the required capacity, independence or scope to enable it to effectively carry out the proposed functions.

Berry Street, in their submission, said:

The breadth of proposed functions and powers ... require independence of government, a requirement to represent and act on behalf of the government of the day ... These distinct roles should not be located with the one position.

The picture I am trying to paint here is that this bill still really needs a lot of work and consultation before we can actually give it the tick.

One of the other major areas of debate that was highlighted during the inquiry was whether the commissioner should have a rights based approach or whether it should be a welfare model approach, or in fact both. There was a lot of discussion, if I remember, about that. Some people suggested that there would be some severe limitations on the role of the commissioner about that. The Australian Human Rights Commission explained that a human rights framework empowers children and young people as rights-holding citizens. So, of course, they believe that that would be a better way to go. Others like PeakCare argued for a family welfare model such as that adopted in Sweden and other European countries, as opposed to the current child protection model. Again, we still have an area of debate that I do not think has been fully explored and resolved.

Let us go to the structure: the establishment of the commission as a statutory authority, whether it should be a standalone office or part of the Australian Human Rights Commission. I do notice that Senator Hanson-Young is suggesting it should now be in the Australian Human Rights Commission. The Law Council of Australia noted further advantages in incor­porating the Commonwealth commissioner into the Human Rights Commission. They observed that if the commissioner were created as a member of the Australian Human Rights Commission then the provisions of course of that act would apply, thereby negating some of the concerns held regarding the drafting of the provisions of the bill.

Let us move to another area of contention: the definition of children and young people. Again, it was interesting to note that some people believed that the definition should be extended to include those aged 25 years or younger in certain circumstances, particu­larly if they were children or young people leaving out-of-home care who were not yet independent. I had not actually thought about that. I had always thought you would define a child and a young person as someone between the ages of zero and 18. The UN definition of a child is a person under the age of 15, believe it or not, and youth are defined as those between the ages of 15 and 24. So, already, we have under the age of 15, under the age of 18, under the age of 24 and up to the age of 25. I do not think this bill clearly specifies the definition—and maybe it does not need to do that; I am not sure. Some people might think 35 is still young these days!