Functions of advocacy and complaint bodies
7.33 The States and Territories are responsible for law, policy and service delivery in significant areas of children’s lives. Federal advocacy, complaints and co-ordination bodies therefore must be complemented by State and Territory agencies closer to children’s services and issues at regional and local levels. States and Territories are best placed to perform many complaint handling, co-ordination and broad systemic advocacy functions for children.
7.34 Existing State and Territory agencies that perform these functions vary greatly. Some State and Territory bodies have wide investigatory powers and others have more of an advocacy and co-ordination role. However, all the agencies tend to focus on care and protection rather than more broad-ranging issues. All States and Territories also have general complaint handling bodies, usually in the form of Ombudsman’s Offices, which accept complaints by or on behalf of children about State and Territory services and authorities. However, these agencies are of limited assistance to children. They receive complaints from all members of the public, not just from or about children, and the number of complaints from or about children is very small.
7.35 The differences between State and Territory bodies are not necessarily undesirable or incompatible with the objectives of clear national standards and equity for children. Uniform standards do not require precise uniformity in the government structures responsible for maintaining those standards, but a con-sistent set of standards is important to ensure proper protection of children’s rights.
7.36 The key issue then is the adequacy of the responses by the institutions within each State and Territory in meeting the national standards, whatever their structures and functions might be. A number of elements are fundamental to effective co-ordination and advocacy, both individual and systemic. The characteristics of a good advocacy mechanism include
active participation by children
accessibility to all children
a good relationship with decision-making bodies concerned with issues affecting children
regional and local representation
access to research and statistics relevant to children.
7.37 The emphasis should be on best practice rather than on prescribing rigidly defined institutional arrangements. Existing bodies have clear advantages in funding. The OFC can have an important role in assisting States and Territories in this. In particular, the OFC should assist States and Territories to develop appropriate processes and best practice for handling complaints by children. Additionally, OFC will assist the development of uniform standards in a number of areas to apply across jurisdictions.
Structure of State and Territory agencies
7.38 State and Territory agencies should be structured in a way that best equips them to perform the advocacy functions. In particular, they should be able to provide broad government-wide advocacy, although they may be supplemented by agencies focusing on specific areas.
7.39 Some commentators see problems in locating within the one body different roles in relation to children — complaint handling, advocacy and policy co-ordination. Complaint handling and advocacy are sometimes regarded as incom-patible and open to conflict of interest if combined. These are valid concerns. Locating functions in separate organisations is clearly one way of dealing with them. However, the two roles may be played by the one organisation without undue conflict provided appropriate functional divisions and procedural safe-guards are observed. There should be a clear distinction and separation between the complaint handling and systemic advocacy roles within the organisational structure. This separation should be reflected in personnel and in the formal decision making arrangements. The organisation should be bound by rules of due process and natural justice, which should be reflected in its governing legislation or regulations and in procedural guidelines. In particular, decisions should be open to review.
7.40 Resource issues are very important. Organisations which perform more than one role should be adequately resourced to do so. Clearly, there is a risk that the accumulation of a heavy complaint load and the greater sense of urgency and immediacy that sometimes attaches to individual complaints may result in resources being diverted from the systemic advocacy area. This can undermine significantly the broader policy work of the organisation. Particular care is needed in relation to reviews of children in care. While this role may be appropriate in some cases, placing all reviews within advocacy agencies could prove very unwieldy, effectively rendering the agency an alternative child protection agency and reducing its scope considerably.
7.41 The State and Territory advocacy bodies should maintain links with HREOC and OFC to ensure they have access to information about systemic problems revealed by individual complaints. Complaints involving federal human rights issues could be referred to the appropriate federal agency (Ombudsman, HREOC or OFC) if lodged at the State or Territory level. The State and Territory agencies would then provide information to the appropriate federal bodies at suitable intervals. In particular, this can help to ensure benchmarks are met and to provide information about systemic issues which should be addressed. Con-sideration needs to be given to privacy issues in developing the liaison and reporting processes.
7.42 A focus of these State and Territory advocacy bodies should be on assisting children with particular needs including children in care, children in or at risk of entering detention and children who have been excluded from school or are at risk of exclusion. Because children lack knowledge of their rights and responsibilities, associated access and awareness campaigns directed to young people need to be undertaken by these State and Territory bodies. In a submission to this Inquiry, the NSW Government stressed the importance of State and Territory bodies becoming accessible and child-focused. The submission outlined some access and awareness initiatives undertaken by the NSW Ombudsman.
The NSW Ombudsman has done substantial work to increase awareness and access…This has largely been the result of funding for a youth liaison officer.
Part of the NSW Ombudsman’s access and awareness program for young people is an ongoing review of complaint handling procedures, including the use of frequent telephone contact, simplified written correspondence and the development of an easy to use complaint form, which requires minimal information.
7.43 Children’s participation in and access to these agencies is crucial.
We are still a long way from a model of Children’s Commissioner in Australia which is independent, broad in focus, and fully involves children and young people as a statutory function. Above all we need a model that does not cringe from the rights of children — a notion that is politically unpopular in the current climate. Until this changes, Offices of Commissioners for Children, as constructed in the Australian context, are in danger of becoming welfare dominated adult forums which regard children as objects of concern, and not as citizens with enforceable rights.
Recommendation 6 Each State and Territory should ensure that there are appropriate mechanisms, vested in either newly established or existing bodies, to
handle complaints by or on behalf of children concerning the conduct of that State’s or Territory’s authorities including conduct of employees and omissions or failures to act by authorities
advocate children’s, or particular groups of children’s, interests at a policy level within government
plan and co-ordinate children’s policies and initiatives at State and Territory level
liaise with OFC, HREOC, the Commonwealth Ombudsman and individual advocates for children, as well as relevant non-government organisations
provide OFC with an annual report on outcome indicators of programs and initiatives for children that receive federal funding
provide OFC with information on systemic matters of concern for children as necessary.
Implementation. States and Territories should be encouraged through COAG to establish such bodies or units. The relevant bodies should establish links with other similar bodies.
Recommendation 7 State and Territory children’s advocacy and complaints bodies should operate on the basis of principles enumerated at recommendation 13.
Recommendation 8 State and Territory children’s advocacy and complaints bodies should undertake access and awareness campaigns directed to young people, particularly those young people who are most likely to require assistance including children who have English language or literacy difficulties, who are outside the education system or who are in the juvenile justice or care and protection systems.
 eg Community Advocate in the ACT, NSW Community Services Commission and Qld Children’s Commissioner: see paras 7.9, 7.11.
 eg SA Children’s Interest Bureau: see para 7.8.
 eg ACT Community Advocate, Qld Children’s Commissioner, NSW Community Services Commission and the proposed Tasmanian Children’s Commissioner: see paras 7.9, 7.10, 7.12.
 HREOC is an example of an organisation that has functions covering both complaint handling and systemic advocacy.
 See para 4.18.
 NSW Government DRP Submission 86.
 ibid. See also NSW Ombudsman DRP Submission 80.
 S Castell–McGregor ‘Commissioners for Children: Lip service to the children’s voice’ (1997) 14 (July) Australian Children’s Rights News 1.