Comment on the proposal


6.20 Many submissions to the Inquiry endorsed the need for a national co-ordination body.[15] This need was also emphasised a number of times during consultations and in evidence to the Inquiry.[16] More specifically, a substantial number of submissions supported our proposal for the establishment of an OFC as set out in DRP 3. This support came from a wide range of bodies, including the Child Health Council of South Australia,[17] the Mental Health Legal Centre[18] and Australian Red Cross.[19] The need for a federal OFC was emphasised in consultations during the Inquiry[20] and was recently endorsed in a paper by the Australian Association of Paediatric Teaching Centres[21] and during the Australian Institute of Early Childhood Centenary Conference in August 1997.[22] A national policy co-ordination unit was also called for in a conference in 1997 on children’s rights.[23]

Benefits of federal co-ordination: corporations law model

6.21 The value of overarching national co-ordination is exemplified by corporations law, where the Commonwealth’s assumption of responsibility has resulted in significant improvements in the operation of the system. The operation of corporations law had been plagued by administrative inefficiencies and lack of co-ordination. During the late 1970s and through the 1980s corporations law operated through the Co-operative Scheme. This scheme provided for the establishment of a Ministerial Council of ministers of all the governments, a National Companies and Securities Commission, a Companies and Securities Law Review Committee and the continuation of existing Corporate Affairs Commissions in each State. Under the scheme, each State passed its own legislation applying the Commonwealth legislation. Difficulties arose because the scheme’s structure diffused responsibility through the Ministerial Council so that no single government or minister was responsible for the legislation. The relationship between the National Companies and Securities Commission and the State Corporate Affairs Commissions was administratively inefficient and problems arose because each of the State Commissions adopted its own interpretations of the law and rulings.[24]

6.22 A Senate Standing Committee report in 1987 highlighted the deficiencies of the scheme and recommended that the Commonwealth assume responsibility for all areas covered by the scheme. In response, the federal Government introduced a legislative package which, among other things, consolidated the legislation and introduced the Australian Securities Commission Act 1989 (Cth). The Australian Securities Commission replaced the National Companies and Securities Commission and the respective State Corporate Affairs Commissions.[25] Several States were concerned that the legislation would result in loss of control over issues relating to companies and challenged the validity of the legislation in the High Court. Their claim was upheld by the High Court.[26]

6.23 As a result of the High Court decision in 1990 the Commonwealth, States and Territories signed Heads of Agreement in Alice Springs (the ‘Alice Springs Agreement’) in which the States and the Northern Territory agreed to pass legislation that would apply the Commonwealth’s legislation. This Agreement replaced the National Companies and Securities Commission and the State and Territory Corporate Affairs Commissions with the Australian Securities Commission which had regional offices in each capital city. The Australian Securities Commission was to become the sole regulatory authority, accountable only to the federal Parliament and responsible to the federal Attorney-General. The Alice Springs Agreement allowed the Ministerial Council to continue. However, it addressed the lack of co-ordination and shifting of responsibility characterised by the operation of that Council by increasing the Commonwealth’s power over its decision making and reducing the Council’s role in corporate law reform.[27]

6.24 The history of corporations law demonstrates the improvements which can be brought about through co-operative federalism and national co-ordination bodies. The Australian Securities Commission differs from our proposed OFC in that the Australian Securities Commission has wide regulatory, investigatory and information gathering powers and the power to initiate civil or criminal proceedings in certain circumstances. However, the Australian Securities Commission is analogous to OFC in that it has responsibility for achieving uniformity throughout Australia in relation to performance of certain functions.[28] The Australian Securities Commission also performs an important educative function.[29] It has become involved in law reform, makes submissions to inquiries and publishes reports and discussion papers.[30] The formation of the Australian Securities Commission, with its regional offices in each State and Territory, illustrates how a body can achieve a level of uniformity and efficiency within the present constitutional arrangements by striking an acceptable balance between national and State interests.

Objections to the creation of OFC

6.25 A number of submissions to the Inquiry questioned the need for a co-ordination body for children on the basis that it would represent a further layer of bureaucracy.[31] These submissions argued from two different assumptions.

6.26 On the one hand, DEETYA accepted that children’s needs should be handled through a ‘whole of government’ approach involving co-ordination by health, education, legal and other relevant agencies but submitted that ‘[t]he creation of an overarching agency may hamper, rather than facilitate, this process which should be the responsibility of relevant agencies in their everyday activities’.[32] At a State and Territory level, the DEETYA submission questioned whether rationalisation could be achieved through the creation of an ‘…additional bureaucratic body…’ as the existing advocacy bodies will continue to be necessary.[33]

6.27 Far from duplication, the Commissions’ proposals will fill a vacuum in policy and unify accountability. They will put children’s interrelated needs first, above the priorities of individual agencies. State and Territory advocacy bodies are an important component in our scheme. The primary function of OFC is policy co-ordination, not advocacy. As part of this co-ordination role OFC would consult with the State and Territory advocacy bodies. Their functions would complement OFC, not duplicate it. OFC would be a facilitative agency to develop integrated policy from the different strands of policy currently being developed in separate agencies which are at some points contradictory and at times deliver considerable inequities.

6.28 Secondly, the Northern Territory Government questioned the need for national consistency, emphasising that areas such as care and protection are primarily the responsibility of States and Territories. However, the object of national co-ordination is not to take away the jurisdiction of the States and Territories over areas such as care and protection and juvenile justice. OFC is intended to monitor and sponsor co-ordinated policy-making across jurisdictions, leading to national quality standards for the operation of those systems.

6.29 A number of submissions questioned whether OFC could operate with appropriate independence.[34] Action for Children SA stated that the office may be subjected to political pressure and not be able to undertake many of the independent monitoring functions required of it, becoming instead a ‘…campaigner for government policy’.[35] The Child Health Council of South Australia also raised concerns about the Office’s vulnerability, stating that it would be dependent on the goodwill of the government of the time.[36]

6.30 However, co-ordination should be undertaken by a body centrally located within government. By contrast, systemic advocacy is a distinct and separate function more appropriately carried out by an independent statutory authority and non-government organisations.[37] A co-ordination body does not have the same requirement for independence. Indeed, independence could preclude its access to the inner workings of government and policy development where its principal roles lie.

6.31 A small number of submissions raised concerns as to the range of functions to be accorded to the proposed OFC. The Child Health Council of SA pointed out that it can be ‘…quite unwieldy for a new establishment to have too wide a brief in the initial stages’.[38] It also stated that some of the recommendations appear to duplicate functions better performed by extending existing government and non-government services. Action for Children also raised concerns, suggesting that OFC’s functions should be limited to a focus on national standard setting and co-ordination of policy at the federal level.[39]

6.32 The Inquiry’s recommendation for a National Summit and Taskforce responds to these criticisms.[40] The National Summit and Taskforce implementation strategy will bring an energy, commitment and purpose to OFC. The priorities agreed to by the National Summit and Taskforce will set the agenda for the first stage of the OFC’s co-ordination work. The Commissions recognise that OFC would have extensive functions. However, these functions would be developed gradually over time in line with other identified areas of priority. Likewise, OFC would not duplicate functions. One object of establishing OFC is to permit over time the rationalisation of other partial co-ordination arrangements so as to remove existing duplication and inconsistency.

[15] eg Church Network for Youth Justice IP Submission 189; Community Services Australia IP Submission 201; Meerlinga Young Children’s Foundation DRP Submission 5; Coalition of Community Groups DRP Submission 10; Child Health Council of SA DRP Submission 47; Action for Children SA DRP Submission 55; National Children’s and Youth Law Centre DRP Submission 59. See also para 5.12.

[16] G Vimpani Public Hearing Submission Newcastle 14 May 1996; Family Court Registry Minutes of Meeting Newcastle 13 May 1996; Melbourne Practitioners’ Forum 28 May 1996.

[17] Child Health Council of SA DRP Submission 47.

[18] Mental Health Legal Centre DRP Submission 54.

[19] Australian Red Cross NSW Division DRP Submission 42. See also P Eastaugh DRP Submission 29; Kreative Kids DRP Submission 35; Education Centre against Violence DRP Submission 43;Federation of Community Legal Centres (Vic) DRP Submission 72; Defence for Children International DRP Submission 74; NSW Youth Justice Coalition DRP Submission 91. Note that the submissions from Federation of Community Legal Centres and Defence for Children International supported the establishment of both OFC and a Children’s Commissioner.

[20] eg G Vimpani Public Hearing Submission Newcastle 14 May 1996.

[21] Australian Association of Paediatric Teaching Centres Policies 1997: Office for Children Canberra 1997, 4. This paper recommended that an Office for Children be established in PM&C and the Premier’s or Chief Minister’s Dept of each State and Territory. The office would perform monitoring, advice, research and advocacy functions in a manner similar to that envisaged for our OFC. Its recommendations, however, differ in that it recommended that the office be established by an Act of Parliament and be a small office of initially no more than 2-5 people, whereas the OFC recommended in this report will not have a statutory base and will have a staff of approximately 8–15 people. These recommendations were approved at an annual general meeting of the Association on 28 October 1996.

[22] Macquarie University Media Release 18 August 1997. The specific recommendation was for a federal Office for Children to be attached to a Minister with an oversight role in establishing national goals, leaving implementation as a State and Territory responsibility. Its functions would include setting and monitoring national standards for all services for children, the establishment of a Council of federal and State Ministers with responsibility for children, evaluating every new federal, State and Territory policy through a child impact statement and establishing a National Centre for Research on Australian Children.

[23] M Rayner ‘Protection and promotion of the best interests of the child’ Paper Children’s Rights: The next step conference Queensland Institute of Technology & Defence for Children International Brisbane 3–5 April 1997, 11.

[24] P Lipton & A Herzberg Understanding Company Law 6th ed The Law Book Company Sydney 1995, 6–7.

[25] id 8-9.

[26] The High Court held that the Cth did not have the power under s 51(xx) of the Constitution to pass the legislation: New South Wales v Commonwealth (1990) 8 ACLC 120.

[27] P Lipton & A Herzberg Understanding Company Law 6th ed The Law Book Company Sydney 1995, 9.

[28] Australian Securities Commission Act 1989 (Cth) s 1(2).

[29] The Australian Securities Commission performs this educative function by releasing policy statements, practice notes, information booklets and media releases: P Lipton & A Herzberg Understanding Company Law 6th ed Law Book Co Sydney 1995, 16.

[30] P Lipton & A Herzberg Understanding Company Law 6th ed Law Book Co Sydney 1995, 16.

[31] Association of Independent Schools of WA DRP Submission 19; DEETYA DRP Submission 60; NT Government DRP Submission 71.

[32] DEETYA DRP Submission 60.

[33] ibid.

[34] Child Health Council of SA DRP Submission 47; Action for Children SA DRP Submission 55; National Children’s and Youth Law Centre DRP Submission 59.

[35] Action for Children SA ‘A Commissioner for Children in Australia’ unpublished position paper, 2.

[36] Child Health Council of SA DRP Submission 47.

[37] See ch 7.

[38] Child Health Council of SA DRP Submission 47.

[39] Action for Children SA DRP Submission 55.

[40] See recs 1, 2.