The children’s champion – A children’s commissioner for South Australia

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.

The role of a children’s commissioner

In a General Comment made in 2003, the UN Committee on the Rights of the Child (Committee) expressed the view that every State needs an independent national human rights institution (NHRI) with responsibility for protecting the rights of children and young people (referred to collectively as ‘children’ in this article). The Committee noted that a broad-based NHRI should include within its structure an identifiable commissioner specifically responsible for children’s rights or a specific section or division responsible for children’s rights. In 2009, in a further General Comment relating to the right of children to be heard, the Committee noted that State parties should establish independent human rights institutions, such as children’s ombudsmen or commissioners with a broad children’s rights mandate, in order to fulfil their obligations under the Convention on the Rights of the Child (Convention).

Australia has largely heeded these calls. Since 1996, independent children’s commissions have been established nationally and in each Australian state and territory with one exception – South Australia. In that state there is currently an Office of the Guardian for Children and Young People (Guardian) which has advocacy functions for children under the guardianship of the Minister for Education and Child Development, and a Council for the Care of Children (Council) which is empowered to advocate for children's issues and to report and consult with the government. However, while these offices play an important role, they do not have the reach and power that a children’s commissioner would have in protecting the rights and interests of children and monitoring the laws, policies and programs that affect them. 

A children’s commissioner for South Australia

A proposal for a children’s commissioner in South Australia was first made in 2003, but more than a decade later has still not come to fruition. The Child Development and Wellbeing Bill 2014 (Bill), which was introduced into Parliament in 2014, does provide for the creation of a Commissioner for Children and Young People in South Australia (Commissioner) but, in March 2015, the South Australian Government decided to delay the legislation so as to take into account any potentially relevant recommendations from the South Australian Child Protection Systems Royal Commission. The final report of this Royal Commission is expected to be released on 6 August 2016. As a result, there is currently an opportunity to consider whether there are any ways in which the Bill could be amended to ensure that the rights and views of children are effectively taken into account in relation to the appointment and role of the Commissioner.

The Council, along with Save the Children Australia, the Office for Children and Young People of the Department for Education and Child Development and the Guardian, have taken up this opportunity by consulting with children across South Australia to obtain their views on what the qualities and work of a Commissioner should be. The results of this consultation are contained in the Conversations Report 2015: Rights and a Commissioner for Children and Young People (Conversations Report) which was provided to the Minister for Education and Child Development in September 2015 with the aim of informing the recruitment, selection and operation of the Commissioner’s office in South Australia. 

The Conversations Report – Giving children a say

One of the purposes of the Conversations Report was to give South Australian children a voice in relation to what sort of person the Commissioner should be and how the Commissioner should carry out their role. To canvass children’s opinions on both this issue and their rights more broadly, the Conversations Report attracted a total of 1654 responses from children across the state aged 4-18 years through a variety of mediums, including online and hard copy quizzes, self-mailers, short stories and written submissions. The methods employed included open answered questions and offering respondents the ability to use drawing rather than writing. This enabled the authors to obtain feedback from a broadly representative group, and overcome some of the barriers to participation posed by factors such as age, ethnicity and ability. In this way, it appears that the report and its methodology were seeking to accord with Article 12 of the Convention which provides that children capable of forming their own views have the right to freely express those views in all matters affecting them and that those views shall be given due weight in accordance with the age and maturity of the child. 

Recommendations and possible amendments to the Bill

The sole recommendation from the Conversations Report was that the feedback from children be taken into account in informing the recruitment, selection and work of the Commissioner. This feedback included that children want the Commissioner to be:

• someone who understands and respects them, will listen to what they have to say and take them seriously;
• visible and approachable;
• someone who will listen to their views and opinions and use this feedback to make life better for children in South Australia;
• inclusive of those who are vulnerable and in rural and remote areas; and
• someone who they can trust and who they can feel safe speaking to.

As the Bill is currently drafted, the Commissioner will be appointed by the Governor on the nomination of the relevant Minister and on conditions determined by the Governor. Before nominating a person, the Minister must call for expressions of interest in accordance with a scheme to be published by the Minister. The engagement and consultation of children in relation to or by the Commissioner is not specifically mentioned in the Bill except for clause 16 which provides that the Commissioner should engage children in the performance of his or her functions under Bill (including, in particular, those children who have a limited ability to make their views known), and that the Commissioner must develop or adopt strategies to ensure that this requirement is satisfied.

There has been little formal recognition of the need to include children in the selection process of children’s commissioners across Australia but there have been some positive steps in this direction. For example, at a Federal level, when Megan Mitchell was appointed as the inaugural National Children’s Commissioner in early 2013 the selection process was in part directed by children themselves in that their views about the criteria and characteristics required for the role were taken into account and they participated in Ms Mitchell’s interview process. Although the Act that enabled the appointment of a National Children’s Commissioner did not specifically require this (all that was required was that the person have appropriate qualifications, knowledge or experience), what was done in practice provides a positive guide for other jurisdictions. Such steps would align with the recommendation made in the Conversations Report and could be incorporated into the Bill itself to ensure that they are carried out.

In addition, the feedback from children in the Conversations Report – that they want their views to be heard and the Commissioner to act as a strong advocate for them – does not seem to be adequately reflected in the current Bill. While the functions of the Commissioner are defined broadly in the Bill, including to promote and advocate for the rights of children in South Australia, there are some limitations to this. In particular, as the Bill is currently drafted the Commissioner is limited to inquire into and advise on matters relating to children at a systemic level, not an individual level. 

While most Australian jurisdictions have adopted a similar approach, moving away from the ability to inquire into and advise on individual matters, this is not the case in all jurisdictions. For example, in the Northern Territory the Children’s Commissioner Act 2013 (NT) gives the relevant commissioner power to deal with complaints from persons who are or have been vulnerable children, or adults acting on their behalf, and make reports to the relevant Minister if appropriate. Similarly, in Tasmania the Children, Young Persons and Their Families Act 1997 (Tas) allows the commissioner (albeit on the request of the relevant Minister) to investigate a decision or recommendation made, or an act done or omitted, under that Act in respect of a child. The Commissioner in South Australia may be less able to act as an advocate on behalf of individual children by not having such powers, but it appears this has been a deliberate decision by the legislature. The Commissioner’s office is likely to have limited resources which may not permit the broader remit of inquiring into and advising on individual matters. Confining the Commissioner’s role to inquiring into systemic matters may, on one view, actually enable the Commissioner to better serve all South Australian children including, in particular, those who are most vulnerable and least likely to be heard at an individual level. 

Conclusion

The Bill is a positive step towards introducing a children’s commissioner in South Australia and bringing the state into line with the other Australian jurisdictions. However, given the delay in progressing the Bill through parliament there is an opportunity for the provisions relating to the appointment of the Commissioner to be further considered and amended, including to provide for future expansion of the role and resources. The findings of the Conversations Report provide useful insights into the views of children on this issue and, as the report itself recommends, should be taken into consideration in relation to the recruitment, selection and work of the Commissioner. While this could be done on a more informal basis, through the way in which the Bill is implemented once passed, it could also be done in a more concrete way by amending the Bill. In particular, the South Australian legislature could consider making the participation of children a legislative requirement for the recruitment and selection of the Commissioner.

Christopher Kew and Henry Sit, Summer Clerks, King & Wood Mallesons.