Report Cards

• Article 4: The government should make all rights under the Convention available to all children

Positive developments

VIC: Establishment of Victorian Commissioner for Aboriginal Children and Young People

Victoria has become the first Australian state to appoint a Commissioner for Aboriginal Children and Young People, [1] going some way to addressing the CRC’s concerns at the lack of effective independent monitoring for Indigenous children in the state. [2] The position is set to focus on the health and wellbeing of Aboriginal children in the state, with particular regard to children in out-of-home care. [3]

While this is a positive development in light of the CRC’s recommendations, it must be noted that no other states have yet initiated similar action, despite public calls to do so in Western Australia in particular. [4]

STATE: Plans to Establish a South Australian Child Commissioner

The South Australian government announced plans to establish the state’s first Child Commission in July 2013. [5]  The SA Commissioner will be an advocate for children in all sections of Government. Currently, South Australia only has a Children’s Guardian who is limited to representing children in state care. This is a welcome development as South Australia is the only State in Australia without a Child Commissioner providing independent monitoring.

The SA Guardian for Children, Pam Simmons, commented:

There have been a number of issues that have been brought to my attention over the years where I haven’t had a legal mandate to intervene and there has been no independent advocate with authority to intervene in those matters. [6]

The appointment of the SA Commissioner is part of a package of measures in the proposed Child Development Act. [7] The Government is also proposing to establish a Child Development Council to provide advice to the Minister for Education and Child Development.

It is important that the legislation is drafted to ensure that the Child Commissioner is independent, given sufficient resources and engages in meaningful participation with children.

Developments requiring attention

NATIONAL: National Children’s Commissioner lacks sufficient funding to fulfill mandate

The first Australian National Children’s Commissioner, Ms Megan Mitchell, was appointed in 2013. While this appointment is a positive development for children nationally, promoting the level of independent monitoring of child rights in Australia, there remain concerns regarding the adequacy of the funding allocated to the role.

A number of organisations have pointed out that the $3.5million allocated to role is to be distributed over four years; [8] only enough to cover minimum staff and travel expenses, rather than supporting the Commissioner’s role in advocacy and monitoring. [9]

Furthermore, the number of individual complaints to the Australian Human Rights Commission (AHRC) is expected to rise as a result of the establishment of the Commissioner’s role. A lack of further funding to address such a rise may result in the Commissioner being diverted from the current mandate. [10]

The National Children’s Commissioner’s mandate, focuses on ensuring “the wellbeing of children by responding to systemic issues emerging from existing Australian complaints mechanisms.” [11] Although the mandate at this stage does not at this stage extend to cover individual children’s complaints it is essential that adequate human, technical and financial resources are provided to both the AHRC and the Commissioner in order to fully and promptly address any rise in complaints.

Therefore, for the complaints system within the AHRC to function, it is vital that both the AHRC and the National Children’s Commissioner’s roles are adequately funded and required resources be allocated by the Australian government.

Areas lacking progress

NATIONAL: Absence of consideration or establishment of a National Deputy Commissioner for Aboriginal and Torres Strait Islander Children

Although in 2013 Victoria appointed a Commissioner for Aboriginal Children and Young People, it remains the only state or territory to date to have done so. [12]

This is despite calls for such positions to be established at a state and national level by advocacy groups and the Committee on the Rights of the Child (“CRC”) in its Concluding Observations.

Child rights groups such as SNAICC have urged the government to create a Deputy Commissioner to focus on Indigenous children and young people, or alternatively, ensure the National Children’s Commissioner has “specific functions and adequate resources to engage on the issues facing Aboriginal and Torres Strait Islander children.” [13]

It is important that the Australian government consider appointing a Deputy Commissioner to focus specifically on Aboriginal and Torres Strait Islander children’s rights in Australia in order to ensure effective monitoring of child rights in Iindigenous communities. Indigenous children are particularly vulnerable and require specific protection. Increased representation for Aboriginal and Torres Strait Islander children and young people should be encouraged across all children’s rights monitoring mechanisms and institutions.

STATE: Lack of complaint mechanisms

At present, the Queensland Commission for Children and Young People and Child Guardian is the only state commission able to provide a complaint mechanism in relation to the delivery of children’s services. Complaints on children’s services put forward to other state commissions are referred to state departments or other organisations. [14] States should provide adequate human, technical and financial resources to their Child Commissioners and Guardians to provide child friendly complaint mechanisms.

• That appropriate measures are provided to ensure that the National Children’s Commissioner is provided with adequate human, technical and financial resources and well as required immunities to effectively function, including in relation to children’s complaints.
• That the government consider appointing a deputy commissioner for Aboriginal and Torres Strait Islander children’s issues at national or state levels in order to ensure the effective independent monitoring of child rights in Indigenous communities.
• That States follow Queensland’s example and provide adequate resources to their Child Commissioners and Guardians to establish complaint mechanisms in relation to the delivery of children’s services.
• That South Australia continue with their proposal to establish the State’s first Child Commission and ensure that the Commissioner is independent, adequately resources and engages in meaningful participation with children.

1. Department of Human Services, ‘Appointment of Commissioner for Aboriginal Children and Young People’ (Media Release, 18 July 2013) (online) at http://www.dhs.vic.gov.au/about-the-department/news-and-events/news/general-news/appointment-of-commissioner-for-aboriginal-children-and-young-people (accessed 9 January 2014)
2. Committee on the Rights of the Child, Concluding Observations: Australia (60^th session, 29 May – 15 June 2012) paras 17-18.
3. Department of Human Services, ‘Appointment of Commissioner for Aboriginal Children and Young People’ (Media Release, 18 July 2013) (online) at http://www.dhs.vic.gov.au/about-the-department/news-and-events/news/general-news/appointment-of-commissioner-for-aboriginal-children-and-young-people (accessed 9 January 2014)
4. Jane Hammond, ‘Call for a special commissioner’ (6 January 2012) The West Australian (online http://au.news.yahoo.com/thewest/a/-/breaking/12515256/call-for-special-commissioner/)
5. Minister for Education and Child Development, News Release, 12 July 2013 http://www.premier.sa.gov.au/images/news_releases/13_07Jul/childrens_commissioner.pdf (accessed 16 January 2014)
6. ABC News, ‘Commissioner for children proposed by South Australian Government a decade after child protection inquiry, 15 July 2013 http://www.abc.net.au/news/2013-07-12/commissioner-for-children-and-young-people-to-be-established-/4816428 (accessed on 16 January 2014)
7. See the proposed Child Development and Wellbeing Bill 2013: http://www.edlawreform.sa.gov.au/files/links/Child_Development_and_Wel_1.pdf
8. Commonwealth of Australia, ‘Budget Paper No. 2, 2012-2013’ http://www.budget.gov.au/2012-13/content/bp2/html/index.htm (accessed 10 September 2013)  Judith Ireland, http://www.smh.com.au/federal-politics/political-news/first-national-childrens-commissioner-appointed-20130225-2f0mf.html
9. The Hon. Catherine Branson QC, Senate Estimates Hansard, 23 May 2012, p.33. Available from  http://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/c8cd5559-756e-4765-af45-3eb75cd89f92/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2012_05_23_1059_Official.pdf;fileType=application%2Fpdf#search=%22committees/estimate/c8cd5559-756e-4765-af45-3eb75cd89f92/0000%22 (accessed 10 September 2013)
10. Law Council of Australia, ‘Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012’ June 2012, p.9 (http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/docs-2600-2699/2605%20-%20Australian%20Human%20RIghts%20Commission%20Amendment%20(National%20Childrens%20Commissioner)%20Bill%202012.pdf) (accessed 10 September 2013)
11. NGO Sector (Roundtable), A National Commissioner for Australia’s Children: NGO Sector Position Paper (2011) p.11
12. Department of Human Services, ‘Appointment of Commissioner for Aboriginal Children and Young People’ (Media Release, 18 July 2013) (online) at http://www.dhs.vic.gov.au/about-the-department/news-and-events/news/general-news/appointment-of-commissioner-for-aboriginal-children-and-young-people (accessed 9 January 2014)
13. Secretariat of National Aboriginal and Islander Child Care (SNAICC), ‘National Deputy Children’s Commissioner for Aboriginal and Torres Strait Islander children’ (Media Release, 30 April 2012) (online) at http://www.snaicc.org.au/news-events/dsp-default-e.cfm?loadref=86&txnid=1275&txnctype=resource&txncstype=document (accessed 9 January 2014)
14. Australian Institute of Family Studies, Children’s Commissioners and Guardians, June 2013, http://www.aifs.gov.au/cfca/pubs/factsheets/a144880/index.html