4 May 2012
By Associate Professor Paula Gerber
On 27 April 2012, the Gillard Government made a long overdue announcement that it would appoint a National Children’s Commissioner. However, the presence of several essential principles in the formation of the role will be key to its success.
This person (yet to be selected) will join the six existing commissioners at the Australian Human Rights Commission (AHRC):
- Human Rights Commissioner (The Hon. Catherine Branson QC);
- Aboriginal and Torres Strait Islander Social Justice Commissioner (Mr Mick Gooda);
- Age Discrimination Commissioner (The Hon Susan Ryan AO);
- Disability Discrimination Commissioner (Mr Graeme Innes AM);
- Race Discrimination Commissioner (Dr Helen Szoke); and
- Sex Discrimination Commissioner (Elizabeth Broderick).
The absence of a children’s commissioner has been a notable omission from this array of experts within the AHRC and there have been calls for this to be remedied for more than a decade. With the announcement of a national children’s commissioner, Australia joins a growing list of countries that have established children’s commissioners to better promote and protect children’s rights including, England, France, Norway, Finland, Spain and New Zealand.
In making the announcement, the Attorney General, Nicola Roxon stated that “the Children’s Commissioner will ensure the voices of children and young people are heard in the development of Commonwealth policies and programs.” She also noted that the role will involve the new commissioner engaging in advocacy to “promote public awareness of issues affecting children, conduct research and education programs, consult directly with children and representative organisations as well as monitor Commonwealth legislation, policies and programs that relate to children’s rights, wellbeing and development”.
The announcement was cautiously welcomed by children and youth advocacy groups such as Save the Children and UNICEF, who have expressed some concern about the level of resources being devoted to the role. Clearly an under-funded children’s commissioner is unlikely to be able to rigorously and effectively carry out its mandate.
There are several other key principles that are essential to the success of a children’s commissioner. These include that:
- The children’s commissioner must be independent of Government. The creation of the position by statute (yet to be drafted), and the positioning of the children’s commissioner within the AHRC, suggests that the Government recognises the importance of the commissioner acting independently.
- The work of the commissioner must be undertaken using a children’s rights framework. This requires that the commissioner’s work be informed by the Convention on the Rights of the Child and its core principles such as non-discrimination and the best interests of the child standard.
- Children must be actively involved in the work of the commissioner, and must be regularly consulted regarding their views on issues being considered by the commissioner. Such views to be given due weight according to the age and maturity of the children. This reflects the right of participation set out in Article 12 of the Convention on the Rights of the Child and represents best practice when undertaking activities that effect children.
- Although the commissioner must represent and advocate for all children, they must recognise and prioritise the need of vulnerable children including, but not limited to, Indigenous children, asylum seeker children, children with disabilities and children in conflict with the law. Indeed there have already been calls by some NGOs for the Government to appoint a deputy children’s commissioner with a specific mandate to protect and promote the rights of Aboriginal and Torres Strait Islander children.
- The commissioner needs to work closely with state and territory counterparts in order to engage in strategic coordination of efforts and avoid counter-productive duplication.
It is too early to know whether the Government intends to give the new children’s commissioner the authority and powers outlined above. But it would be disappointing if the role of commissioner was not established in accordance with these minimum criteria.
Finally, it should be noted that a review of Australia’s implementation of the Convention on the Rights of the Child, by the UN Committee on the Rights of the Child, is scheduled to take place in just a few weeks on 4-5 June.
The timing of the Government’s announcement is likely to have been prompted by this impending review, since the Committee gave Australia advance notice that at the review it wanted the Government to “provide information on progress, if any, concerning the establishment of a national commissioner for children and young people”.
The delegation to Geneva will no doubt be relieved to be able to report that there has indeed been significant progress in this regard.
Associate Professor Paula Gerber is the Deputy Director of the Castan Centre for Human Rights Law in the Faculty of Law at Monash University.