An integrated system of advocacy: federal arrangements


7.20 The issues and problems examined in this Inquiry highlight the need for an integrated national system of advocacy with leadership at the federal level.

The Commonwealth Government must accept its moral and political obligation to children and take the lead in developing a framework for the provision of community services which have the interests of children at their heart. It may not be necessary for the Commonwealth to provide these services, but it must develop the frameworks, set the minimum standards and provide adequate resources.[35]

7.21 The Inquiry has examined existing Australian and overseas models. It sees useful elements in many, although none is entirely suited to Australia’s conditions at a national level and particular federal arrangements.

A federal commissioner for children

7.22 The most common proposal for advocacy for children is for a Commissioner for Children. Numerous members of Parliament, judges, welfare agencies and other commentators in Australia have called for the establishment of a federal Commissioner for Children.[36] A substantial number of submissions to the Inquiry endorsed this proposal.[37] In particular, key organisations such as the National Children’s and Youth Law Centre,[38] Burnside[39] and Defence for Children International[40] have advocated this position strongly.[41] This proposal has been mirrored in other countries, with similar calls recently in countries such as the UK.[42]

7.23 In suggesting the establishment of a Commissioner for Children, a number of submissions emphasised the need for an independent, statute-based advocacy body rather than an office placed squarely within government. The National Children’s and Youth Law Centre considered this a better option than the establishment of a Ministry or a National Office for Children because

[a]n independent Commissioner for Children, not bound by party political considerations, would be able to speak out freely on behalf of children without the constraints on a Minister or a government agency.[43]

7.24 The Inquiry considers that the most pressing need at this stage is a national body located within government to co-ordinate policy development and service delivery for children. This is the basis of the Inquiry’s recommendation for OFC.[44] However, the Inquiry also agrees with submissions that an independent body to provide broad based national advocacy for children is needed.

7.25 A number of commentators and several submissions to the Inquiry have suggested that a Commissioner for Children or similar office would be best placed in an existing Commonwealth structure such as HREOC.[45]

Role of HREOC

7.26 HREOC has responsibility for the promotion and protection of children’s rights under CROC. It was given this responsibility in 1992 but it was not given any particular resources for this work.

7.27 HREOC ‘s limited and decreasing resources and its other areas of responsibility hamper its advocacy functions for children: a submission to this Inquiry described HREOC as overworked and under-resourced.[46] The federal Government has proposed a restructure of HREOC that would result in a lesser number of Commissioners each responsible for a number of different constituent groups and portfolio areas[47] This proposal would not allow for the addition of a specialist Commissioner for Children located within HREOC.

7.28 Nonetheless, HREOC already undertakes the functions that would be expected of a Commissioner for Children. HREOC is well-suited to the advocacy role because it

    • is independent in law

    • has both monitoring and advocacy roles

    • uses CROC as a basis for its work

    • has a strong human rights focus and a broad-range view of issues.

HREOC liaises with government and non-government bodies, speaks out in defence of children’s interests, scrutinises legislation and policy to ensure that it accords with CROC and makes submissions to relevant government committees and inquiries. It has a range of ‘tools’ fundamental for an organisation devoted to strong advocacy, such as a public affairs section and an inquiries unit. It also has a strong background in research, publications and policy and has developed contacts and networks with a wide range of government and non-government agencies. Notwithstanding the obstacles, the Inquiry considers HREOC the appropriate federal body to provide broad based systemic advocacy for children, provided that it is properly resourced and able to arrange its structure appropriately, for example by establishing a specialist children’s rights unit.

7.29 There is also a strong economic argument in favour of HREOC fulfilling the role of a broad based national advocate. While some additional funding and staff would be required, locating the role in an existing organisation avoids additional layers of bureaucracy and the administrative and infrastructure costs associated with the establishment of a new organisation. As indicated throughout this report, the Inquiry’s recommendations wherever possible build on, rather than duplicate, the efforts of existing agencies and institutions working for children.

7.30 HREOC should form close ties with OFC, strengthening the advocacy and co-ordination functions undertaken by each body.[48] The advocacy functions undertaken by HREOC would also be complemented by the complaint handling role of the Commonwealth Ombudsman, systemic advocacy at the State and Territory level and a network of grassroots advocates catering for individual children.[49]

Recommendation 4 HREOC should be resourced to establish a specialist children’s rights unit to undertake broad, national systemic advocacy on behalf of children.

Implementation. The Attorney-General should provide the necessary funds.

Commonwealth Ombudsman

7.31 Complaints processes are an important means for children to make their voice heard in the legal system and to seek redress for wrongs.[50] Complaints processes should be accessible to children. The Commonwealth Ombudsman, HREOC and OFC should also develop close information-sharing links to inform their respective complaints-handling, advocacy and co-ordination functions.

7.32 In DRP 3 the Inquiry proposed that the Commonwealth Ombudsman collect and provide to the OFC regular information concerning the numbers and types of complaints by children, to assist in the development of complaints processes for children.[51] However, a submission to the Inquiry doubted whether this information could be a basis for improving the system, particularly when children tend not to make complaints.[52] The submission pointed out that information from inadequate statistics will not necessarily indicate whether children’s interests are being addressed. However, information about complaints would not be provided to OFC and HREOC on this basis but rather as a means of identifying systemic problems.

Recommendation 5 The Commonwealth Ombudsman should ensure complaints processes are suitably adapted for children. It should incorporate the principles enumerated in recommendation 13. The Ombudsman, HREOC and OFC should develop links to ensure the co-operative exchange of information to promote best practice for administrative processes in relation to children.

Implementation. The Commonwealth Ombudsman should provide information to HREOC and OFC in relation to any systemic problems for children that become apparent. Information should be collected and provided to HREOC and OFC on a regular basis concerning the numbers of child complainants, types of complaints and results. HREOC and OFC should consult regularly with, and provide information and advice about research and systemic issues to, the Commonwealth Ombudsman.

[35] eg J Usher Australian Catholic Social Welfare Commission ‘Child protection bigger issue than pedophilia’ The Sydney Morning Herald 24 September 1997, 15.

[36] S Jeanes Discussion Paper: Does Australia need a Commissioner for Children? unpublished Adelaide 1996. A Nicholson ‘Advancing children’s rights and interests: The need for better inter-governmental collaboration’ (1996) 26 University of Western Australia Law Review 255. The current Qld Commissioner for Children has also called for a Commissioner at the federal level and in each State: ‘Call for children’s agency’ (1997) 8(6) Committee Bulletin 8.

[37] eg Come-In Youth Resource Centre IP Submission 14; SA Children’s Interest Bureau IP Submission 156; Oz Child Legal Service IP Submission 195; Australian Association of Social Workers IP Submission 207; Church Network for Youth Justice IP Submission 212; Burnside IP Submission 214; 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; Defence for Children International DRP Submission 74.

[38] R Ludbrook Why Australia Needs a Commissioner for Children — Discussion Paper National Children’s and Youth Law Centre Sydney 1994.

[39] A Proposal for a Commissioner for Children Burnside Social Justice and Research Program Paramatta 1997.

[40] Defence for Children International Australia Submission 120 to the Joint Standing Committee on Treaties Inquiry into the Status of the UN Convention on the Rights of the Child 1997.

[41] See also fn 4 above concerning calls for systemic advocacy for children generally.

[42] Childhood Matters: The Report of the National Commission of Inquiry into the Prevention of Child Abuse HMSO London 1996 recommended the appointment of a Minister for Children and the establishment of children’s commissions throughout the UK. See also J Hirst ‘A matter for us all’ (1996) (October) Community Care 10.

[43] R Ludbrook Why Australia Needs a Commissioner for Children — Discussion Paper National Children’s and Youth Law Centre Sydney 1994, 11.

[44] See paras 6.13-14.

[45] S Jeanes Discussion Paper: Does Australia need a Commissioner for Children? unpublished Adelaide 1996. In November 1994 the Joint Standing Committee on Foreign Affairs and Trade recommended that the Attorney-General investigate the feasibility of establishing a Children’s Ombudsman within HREOC: Joint Standing Committee on Foreign Affairs, Defence and Trade A Review of Australia’s Efforts to Promote and Protect Human Rights AGPS Canberra 1994 rec 9.8.2. The Committee reinforced this recommendation in a 1996 report: Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights and Equal Opportunity Commissioner and the Commonwealth Ombudsman: Report on Public Seminars 20 and 25 September 1996 AGPS Canberra 1997 recs 1-2. See also Burnside IP Submission 214. DEETYA DRP Submission 60 suggested that a ‘more explicit reference to children under existing reporting structures’ such as HREOC and the Cth Ombudsman was a preferable means of exercising advocacy, accountability and co-ordination functions.

[46] Action for Children SA DRP Submission 55.

[47] D Williams, Attorney-General and Minister for Justice Media Release 23 September 1997.

[48] Action for Children SA DRP Submission 55 stressed the importance of the Commissioner having access to those within government who can bring about necessary changes, whether in law, policy or practice.

[49] See paras 7.31-56.

[50] See para 7.45.

[51] Draft rec 12.3.

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