Are you listening to us? The Case for a Victorian Children and Young People's Commission

PART 2:TOWARDS A VICTORIAN MODEL

Principles that underpin a Children and Young People ’s Commission

Previous research has outlined several key principles that underpin the role of the Children and Young People’s Commission. YACVic believes the following principles need to be addressed in developing a model for a Victorian Commission:

independence
statutory power
focus on children and young people up to the age of 18
adequate resources
broad perspective
accessibility.

UNICEF advises that:

not all models of commissions incorporate all the above features, but where they are absent, the role of the ombudsman or commissioner is likely to be limited in its range of activities, in its freedom to advocate powerfully for children, in its capacity to act for all children or in its ability to reflect the direct concerns of children themselves. 31

Independent

If the Commission is to be an effective advocate for children’s rights, it must be able to make fearless assessments of government and lobby for change without being subject to political pressures:

as an Office devoted to the promotion and protection of human rights, it is inevitable that a Commissioner may criticise government policy and practice.There are few governments in the world that easily accept being criticised. Without complete independence political pressure can be brought to bear on a Commissioner. 32

As shown in the previous section, Commissions have been criticised where they have not been seen to be independent. If a Commission is administratively accountable to the agencies they may have to investigate or criticise, they cannot act independently. 33 For example, the Children’s Interests Bureau in South Australia was responsible for monitoring the policies of child welfare departments. However as the Bureau was attached to the Department of Family and Community Services, the ability to monitor its polices and practices independently and impartially was hampered. 34 Children and young people are also aware of the limitations of the complaint-handling process where the Office investigating the complaint is not seen to be independent.This may deter them from making complaints. 35

YACVic recommends that the following safeguards be incorporated into the creation of a commission to ensure its independence:

The establishment of the Commission, including the appointment of the Commissioner, should not be in the hands of an individual Minister and should preferably be made in consultation with independent children’s rights organisations.

The structure should be established by an Act of Parliament and the Commissioner should have a statutory term of office. The funding for the Office should be removed from political control and be guaranteed over a given period to enable medium-term strategic planning. The level of resourcing should be decided by Parliament rather than by administrators within a government department.

The Commission must be given the freedom to define its own priorities as well as to respond to references. Although it is vital that government and the Commission consult with each other, the Commission’s flexibility to determine its own program priorities will ensure that issues of great concern to children, rather than government, dominate the focus of the Commission’s work. 36 However, a Joint Parliamentary Committee on the Rights, Interests and Well-Being of Children and Young People could be established to inform the Commission’s work. It should be expected that the Commission would be responsive to all members of Parliament within the extent of its resources.

Statutory powers

The Commission must be established by legislation and given the authority to carry out its functions. Its charter for operating within a human rights framework should be underscored by reference to CROC in the enabling legislation.

The legislation should also set out the functions and powers of the Commission. These are explored in the next section of this paper. The Commissioner should also have a secure tenure. YACVic supports the recommendation of an initial appointment of five years with the possibility of reappointment.38

The legislation should also affirm the Commissioner’s ability to speak freely and enable it to access information that is necessary to conduct investigations and research.

A focus on children and young people up to the age of 18

YACVic believes that the Commission must have a focus on children and young people up to the age of 18.This age defines the border between adulthood and childhood for most formal purposes and places under 18 year olds at a distinct disadvantage. As they are unable to vote, children and young people do not have a high political profile and their rights, interests and well-being are vulnerable to being overlooked in favour of adults. A Commission with the functions and responsibilities outlined in this Discussion Paper provides a key, participatory means of systematically highlighting the rights, interests and well-being of children and young people so that they are placed at the centre of government decision-making. The Commission would also recognise that many of the issues affecting children and young people are not restricted to those under the age of 18 and the Commission would be responsive to issues occurring in networks of children and young people of varying ages.

Adequate resources

Establishing an Office of a Children’s Commissioner in name only is potentially more harmful than nothing at all. An impotent, under-resourced or politically comprised Children’s Commissioner is doomed to disappoint children and their advocates. 39

Funding should not be determined by party politics.YACVic believes that Parliament rather than the government should decide the funding allocation. 40

This allocation should be transparent in the Government’s budget papers that are presented to Parliament. It is important that the Commission is maintained through changes of government and policy and the support of Parliament is necessary to achieve this. To enable medium-term strategic planning YACVic would suggest that the establishment of the Commission is accompanied by an allocation of funding to cover at least a three year period.

The budget allocation needs to be commensurate with the responsibilities of the Commission and enable medium-term planning. It is difficult to propose an appropriate budget at this time. The budgets of other Commissions were examined to determine an approximate level of funding. 41

However, as these bodies have different functions, responsibilities and staffing requirements, it is difficult to make comparisons. It is vital that the budget reflects the functions and purpose of the Commission and is not used to determine the Commission’s powers and responsibilities.

The budget needs to provide adequate resources for permanent staff that have specialist knowledge of law, policy and practice affecting children and young people. People with investigative, media, finance and administrative experience will also staff the Commission and external consultants could be contacted for specialist advice as appropriate.

A broad perspective

The Commission must have a broad jurisdiction that takes into account all levels of government, non-government and commercial organisations which impact on children and young people. 42

A whole of government vision is necessary to ensure leadership by example” in the fulfilment of CROC obligations. YACVic does not support a Commission that is focused on child protection matters. This has been a basis of criticism of other Australian models. In addition, with respect to complaints about protection issues,YACVic recognises that these are within the jurisdiction of the Ombudsman in Victoria and that matters may also be dealt with by the Victorian Civil and Administrative Tribunal.

Accessibility

Many government offices and non-government and commercial services are more readily accessible to English-speaking white Australians than other people. 43

The Commission should be required to recognise the diversity of children and young people and to ensure that the Commission is accessible to all young people. There should be an awareness of those children and young people who may find access particularly difficult including those from an indigenous background or ethnic background, children and young people with disabilities, those in state care and detention and those in regional and rural areas. Children and young people should also be able to access the Commission directly. The Commission could capitalise on electronic means of communication such as email and the internet. However, it must also recognise the limitations of this form of communication particularly for children and young people in regional and rural areas who may not be able to access the internet easily. Examples of practical strategies to achieve this are provided in the following section.

Functions and responsibilities of a Children and Young People’s Commission

A Victorian Children and Young People’s Commission must have the ability to undertake all measures that are necessary to promote the rights, interests and well-being of children and young people. There is no one “right” model of a Children and Young People’s Commission. However, YACVic has identified the following functions as vital to the effectiveness of a Commission:

involve and engage young people
perform an advocacy role
review existing and proposed legislation
monitor policies and practices
initiate and conduct inquiries
report and make recommendations to Parliament
provide information, referral and assistance to complainants
research crucial issues
promote public education programs
promote models of child and youth participation in decision making
apply for standing before the court in special selected cases involving the rights ofchildren and young people
form partnerships with other statutory bodies

Involve and engage young people

As the Commission is responsible for performing an advocacy role, children and young people must have the opportunity to provide direct input into the Commission’s work. This will ensure that their views are heard on all issues which affect them. Consultative mechanisms need to be accessible to all children and young people.

Strategies which may facilitate this process include:

State or national forums for children and young people where their concerns and the work of the Commission could be discussed.
The setting up of advisory groups of children and young people to discuss priorities for the work of the Commission and the stance it could take on various issues.
The establishment of specialist advisory groups (e.g. children with disabilities, children in care etc.). 44
Dedicated telephone lines to provide a point of access and to provide expert referral and support. 45
Email access and interactive homepage.
Maintaining close contact with children and youth groups operating in various states and territories. 46
Employing appropriate strategies to consult and involve children and young people in rural and regional areas.

Perform an advocacy role

The Commission must be an advocate for the rights of children and young people in order for their interests to be considered at a policy level. The Commission must also facilitate and support the development of community advocacy services. Advocacy incorporates a number of functions:

Promoting the interests of children generally to ensure government and agency accountability.
Monitoring compliance with international obligations.
Scrutiny of legislation, programs and initiatives.
Conducting and/or co-ordinating research to promote best practice in relation to children.
Supporting and assisting particular disadvantaged children to access services or obtain redress for complaints and problems.
Encouraging the development of meaningful structures to enable children and young people to be active participants in the decision-making processes affecting their lives. 47

Review existing and proposed legislation

The Commission must be able to review all proposed and existing legislation in terms of actual and potential impacts on the rights, interests and well-being of children and young people. The Commission should also be able to recommend new laws to promote these rights and interests. These powers accord with article four of CROC which states:

Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in this convention.

It is important that the Children and Young People’s Commission has the ability to examine proposed laws as it is ‘better to influence policy while it is being conceived rather than after it has been put into practice’. 48 This would involve consulting with government departments and other key stakeholders and reporting on how the new laws are likely to impact on children and young people.

The ability to review legislation will enhance the ability of the Commission to effectively advocate on behalf of children and young people.

Monitor policies and practices

The Commission should be able to monitor the policies, practices and resource allocations of any government department, non-government or commercial agency to address their impact on the interests and well-being of children and young people. This will ensure that young people are adequately considered in decision-making processes.

YACVic supports the idea that a Commission should be empowered to request the preparation of an impact statement as part of any planning or development process that will affect children and young people. The department or agency undertaking these plans would be obliged to prepare the statement. The purpose of the child impact statement would be to insure that children’s interests are considered in development and planning. 49

Initiate and conduct inquiries

The Commission should have the power to initiate and conduct inquiries that relate to the status of children and young people in Victoria. This is integral to evaluating and improving the extent to which children and young people enjoy their rights. 50

As noted by the Strategic Review of the Queensland Ombudsman:

it is pointless to continue to play a purely reactive role, constantly reviewing complaints of a similar nature year in and year out. A pro-active approach is required .More frequent use should be made of ‘own motion’ investigations. The Office should constantly identify areas where complaints are clearly stemming from basic systemic causes in sufficient numbers to warrant a research program conducted with the cooperation of the agencies concerned to identify the cause, propose new approaches, and change the pattern of administration. 51

The Commissioner should have the power to initiate inquiries on his or her own initiative without necessarily receiving a reference from Parliament. However, Parliament should be able to refer inquiries to the Commission.

To perform this role the Commission must be able to access departmental files, enter public and private institutions for children (including schools), call for files on individual children (with safeguards to protect their privacy and to prohibit repercussions and recriminations on them and on people providing information to the Commission) and require that relevant people give oral or written evidence if necessary. 52

In reporting findings to Parliament and the public, the Commission should make recommendations as to necessary changes to law, policy and practice.

Report and make recommendations to Parliament

The Commission would be responsible for reporting to Parliament on issues relating to the status of children and young people in Victoria. The Commission would present several reports to Parliament:

An annual report on the work performed by the Commission and the status of children and young people in Victoria.
An interim and final report about inquiries referred to the Commission by Parliament.
An interim and final report about inquiries initiated by the Commission.

These reports would make recommendations about the actions that need to be taken to improve the status and well-being of children and young people in Victoria.

Provide information and referral

In addition to making reports to Parliament, the Commission would provide expert information and advice to the wider community in several ways:

Responding to information requests.
Making independent submissions to inquiries in Victoria and elsewhere. For example, the Commission could provide specialist advice about the use of the Independent Person in police stations if this was the subject of an inquiry.
Assisting children and young people and other members of the community to use existing complaint mechanisms and ensuring that the person is referred to the appropriate body.

Research relevant specific issues

The Commission must undertake proactive research to identify specific issues relating to the status of children and young people in Victoria and to promote their rights, interests and well-being. Issues leading to further research may be identified in the complaints received by the Commission. As discussed in the following section, recurring themes in complaints can be used to highlight systemic problems that require further investigation.

To conduct this research effectively, the Commission needs to access relevant statistics and other information from government and other agencies. Also by collating such data, all sectors of the Victorian community will have a unique child-centred information resource.

Promote public education programs

The Committee regrets that there seems to be a lack of adequate understanding in some quarters of the [Australian] community of the principles of the Convention, as well as its holistic and interrelated approach, and the importance that the Convention places on the role of the family. 53

Article 42 of CROC states that governments must ‘make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike’. It is important that the Commission be able to promote education about CROC within the community to identify and overcome any misinformation. Education programs would inform the community and young people about their rights and about the work of the Commission.

Promote models of children and young people’s participation

YACVic believes the Commission should promote the participation of children and young people in decision-making and policy development at all levels of government and in non-government organisations.This is in line with CROC principles which state that ‘the views of the child (be) given due weight in accordance with the age and maturity of the child’ and that ‘the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body’ (Article 12).

The Commission should promote greater participation by establishing best practice models, monitoring services as to the involvement of children and young people and providing or assisting with training to departments and service providers. By directly involving children and young people in its own work and using their input to influence outcomes, the Commission would establish itself as a model of effective participation.

>Apply for standing before the court in special selected cases involving the rights of children and young people

If it is seen to be in the public interest, the Commission should have the capacity to apply for standing to intervene in court proceedings that involve the rights, interests or well-being of a number of children or young people. The Commission would act as an “Amicus Curae’’ (Friend of the Court). 54 The submissions would most likely be limited to questions of law. For example, had mandatory sentencing been introduced in Victoria (a law both the current and previous governments have condemned), then the Commission could seek standing to intervene and make a submission as to the implications of the law on the State’s obligations under CROC and other human rights treaties affecting children and young people. The Commission would apply to the court outlining why the matter is in the public interest and the court may grant this application.

Form partnerships with other statutory bodies

As outlined in Part one and in the following section, the Commission would work closely with other statutory bodies such as the Equal Opportunity Commission Victoria and the Victorian Ombudsman. The Commission would do this by referring individual complaints to the relevant Office and receiving information from these bodies about trends occurring in these complaints. These trends may initiate further research and investigative work within the Children and Young People’s Commission. A partnership between the bodies would also enable them to raise issues of common concern, such as racism. This will raise greater awareness of these issues in the community and promote more coordinated responses.

Should the Commission receive and handle individual complaints?

YACVic does not recommend that the Children and Young People’s Commission receive and handle individual complaints other than those which fit very narrow criteria. This view is supported by a number of other commentators. 55

The main reasons for this include:

An individual complaints handling function will consume the resources and dominate the work of the Commission, thus preventing work on more public interest/advocacy issues.
In other areas the individual complaint-based focus has been criticised as being unable to address more systematic and institutionalised forms of discrimination, and as having a limited capacity to educate the wider community about human rights and discrimination.This is because private methods of resolution, such as conciliation, may be adopted which remove the issues out of the public domain. 56

There are also a number of complaint bodies that already handle complaints from children. For example, the Victorian Ombudsman deals with complaints against the Department of Human Services involving the care of children. Of the Community Services and Health complaints received in 1999/2000, 76.6% related to child protection issues. 57 13% of complaints about public hospitals, which are received by the Health Services Commissioner, are made by or on behalf of children and young people. 58 YACVic supports the recommendation that these and other complaint handling agencies such as the Equal Opportunity Commission become more accessible to children and young people by developing specialist children’s sections and accessible complaint mechanisms. 59

However, the Children and Young People’s Commission should be aware of the complaints that are being received by these other bodies and of the barriers that may prevent complaints from being made. This will ensure the Commission addresses issues of concern to children, young people and their carers and can raise issues that have wider social implications.This would help to foster a partnership between the different bodies. Alternatively, a Victorian Commission could employ similar techniques to those used by the Norway Ombudsman.There, people are invited to call the Office with their concerns or complaints. Although the Office does not take action on these individual cases, recurring themes are used to initiate research and investigations and to inform policy discussion.

The Children and Young People’s Commission would also ensure that complaint-handling systems are in place in both the government and non-government sectors and both accessible and effective from the point of view of children and young people. If systems are not seen to exist or do not meet the necessary standards of effectiveness and accessibility, the Commission would advise on the establishment of complaint mechanisms. In this way, the Commission would work with service providers, agencies and government departments to ensure that complaint handing mechanisms exist and are effective and accessible. 60

YACVic recognises that the jurisdictions of existing complaint handling bodies do not cover all areas where a complaint may be made by or on behalf of children and young people. Therefore, YACVic recommends that in a limited range of defined circumstances, the Children and Young People’s Commissioner should take the complaint on itself. As a starting point for discussion as to what the narrow criteria for the Commission accepting a complaint might be, YACVic proposes the following:

the complaint raises issues of public interest or systemic significance;
or the rights, interests or well-being of a particular child or young person, or groups of children or young people will be seriously affected if no action is taken and no other avenue of complaint, redress or source of assistance is reasonably or practically available.

Location and accountability of A Children and Young People ’s Commission

YACVic proposes that an Act of Parliament establish the Children and Young People’s Commission as an independent Office with the Convention of the Rights of the Child as it’s guiding charter. The Commission would be answerable to Parliament and the Commissioner appointed by a process that is transparent and party apolitical. He or she should be a Governor in Council appointment who may be removed only by a joint sitting of Parliament. The Commission would report to Parliament annually and on specific issues as they arise. 61

The Commission should not be attached to any government department save for the minimum necessary administrative purposes. A review of Australian and international models in this report demonstrates that attachment to a department reduces the ability of the Commission to undertake its functions independently and without political pressure.

Future developments

YACVic welcomes responses to this discussion paper to enable further discussion about the model presented.

Contact

Youth Affairs Council of Victoria Inc.
Level 6, 1 Elizabeth Street, Melbourne, 3000
Telephone: (03) 9612 8999, Fax: (03) 9620 4802
Email: info@yacvic.org.au
Website: http://www.yacvic.org.au

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