Children's commissioners and guardians

Children's commissioners and guardians

CFCA Resource Sheet— June 2018
Children's commissioners and guardians

This information is provided as a guide only - it is current up to the date of publication. Individuals are encouraged to check the currency of any information that is provided by contacting relevant departments or organisations.

This resource sheet outlines the role and duties of children's commissioners and guardians, and their functions in each Australian jurisdiction.

Children have a special need for protection and policies. Australia recognises this as a signatory to the Convention on the Rights of the Child (United Nations, 1989). The convention states that actions concerning children’s lives, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, must be undertaken with a specific understanding of their needs and rights. One of the ways Australia meets this and other obligations under the convention is through the establishment of children’s commissioners and guardians. These independent bodies have been in place in Australian states and territories since 1996 and are integral to providing a voice for children in decision making.

What is a commissioner and why are they important?

A commissioner for children and young people works within an independent statutory body, known as a children's commission. Their primary role is to advocate for children's rights, and to examine and review legislation, policy and practices that affect the health, welfare, care, protection and development of children. Commissioners also report and make recommendations to their state parliament or legislative assembly on issues concerning children and young people. The establishment of children's commissions, or their equivalent, in all states and territories has been important for providing children with an independent voice that aims to uphold children's rights. A commission's independence from government is important for providing children with a representative body solely concerned with protecting and promoting their rights, without other political influences.

As well as a commissioner or guardian in each state or territory, Australia also has a National Children’s Commissioner and an e-Safety Commissioner. After several campaigns to establish a National Children’s Commissioner, Megan Mitchell was appointed in March 2013. The appointment of a national commissioner was also identified as a key outcome of the National Framework for Protecting Australia's Children 2009–2020 (Council of Australian Government, 2009).

The National Children's Commissioner sits within the Australian Human Rights Commission, an independent statutory body for human rights. As National Children's Commissioner, Ms Mitchell plays a key role in promoting the rights of Australian children in policy and practice, and her role complements that of existing state and territory commissioners.

The Enhancing Online Safety Act 2015 established the office of the Children's e-Safety Commissioner within the Australian Communications and Media Authority. The Commissioner’s role was initially set up to cover the promotion and enhancement of online safety for children but, in 2017, the act was amended to expand the Commissioner’s remit to all Australians, with the office becoming known as the e-Safety Commissioner (Office of the e-Safety Commissioner, 2018).

Julie Inman Grant was appointed to the role in January 2017 for a five-year term. The e-Safety Commissioner's key role is to promote and enhance online safety for all Australians. This includes: running a complaints service for young Australians who have experienced cyber-bullying; providing reporting options, support and resources for victims of image-based abuse; and investigating complaints on prohibited online content (Office of the e-Safety Commissioner, 2018).

Twice a year, the various commissioners, guardians and advocates across Australia meet together as the Australian Children’s Commissioners and Guardians (ACCG). The group aims to:

  • promote and protect the rights, safety and wellbeing of children and young people
  • ensure children are considered, and have a voice in public policy and program development
  • drive systemic improvement in areas that impact on the rights, interests and wellbeing of children and young people (ACCG, 2017).

What is the difference between a commissioner and a guardian?

A children's commissioner works to improve and ensure better services for all children. A children's guardian works solely to help improve the services for children in the care of a department. Not all states and territories have a commissioner and a guardian. In most states and territories, the commissioner also acts as the guardian. Queensland, South Australia and New South Wales have separate commissioners and guardians.

How is a commissioner appointed?

The National Children's Commissioner is appointed by the Governor-General, once the Prime Minister is satisfied that the person has the appropriate qualifications, knowledge or experience. The e-Safety Commissioner is appointed by the Minister of Communications.

In each jurisdiction, the governor or administrator of a state or territory government appoints a commissioner and/or guardian. The role of a commissioner or guardian is established in accordance with a state or territory act of parliament (details of each state and territory act can be found in Table 1).

Who are the commissioners and what legislation governs them?

Table 1 provides a national overview of children's commissions in Australia, identifying the relevant body in each jurisdiction, along with the legislation providing for the commission and the current commissioner and/or guardian.

Table 1: Commissions, relevant legislation and commissioner/guardian details in Australia

Jurisdiction

Details

Act

Head/office holder

National

The National Children's Commissioner is an independent statutory office within the Australian Human Rights Commission.

Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012 (Cth)

Megan Mitchell

National

The Office of the e-Safety Commissioner is an independent statutory office within the Australian Communications and Media Authority.

Enhancing Online Safety Act 2015 (Cth)

Julie Inman Grant

ACT

The Children and Young People Commissioner is an independent statutory office within the ACT Human Rights Commission.

Human Rights Commission Act 2005 (ACT)

Jodie Griffiths-Cook, Commissioner

NSW

The NSW Advocate for Children and Young People is an independent statutory office reporting directly to the NSW Parliament.

Advocate for Children and Young People Act 2014 (NSW)

Andrew Johnson, Advocate

NSW

The NSW Children's Guardian is an independent statutory office within the NSW Office of the Children's Guardian and reports directly to the Minister for Family and Community Services and to the NSW Parliament.

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Janet Schorer, Guardian

NT

The Children's Commissioner works within the Office of the Children's Commission NT. The commission is an independent statutory body reporting to the NT Legislative Assembly through the Attorney-General and Minister for Justice.

Care and Protection of Children Act 2007 (NT);
Children's Commissioner Act 2013 (NT)

Colleen Gwynne, Commissioner

Qld

The Principal Commissioner and the Commissioner work within the Queensland Family and Child Commission is a statutory body reporting to the Minister for Child Safety.

Family and Child Commission Act 2014 (Qld)

Cheryl Vardon, Principal Commissioner

Phillip Brooks, Commissioner

Qld

The Office of the Public Guardian is an independent statutory body reporting to the Minister for Justice and the Attorney-General.

Public Guardian Act 2014 (Qld);
Guardianship and Administration Act 2000 (Qld)

Natalie Siegel-Brown, Public Guardian

SA

The Commissioner for Children and Young People is an independent statutory body that reports to the Minister for Child Protection.

Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA)

Helen Connolly, Commissioner

SA

The Guardian for Children and Young People works within the SA Office of the Guardian for Children and Young People. This is an independent body that reports to the Minister for Child Protection.

Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA)

Penny Wright, Guardian

Tas.

The Commissioner for Children and Young People is an independent, statutory office responsible to the Parliament of Tasmania.

Commissioner for Children and Young People Act 2016 (Tas.)

David Clements, Commissioner

Vic.

The Principal Commissioner for Children and Young People works within the Children's Commission and reports to the Minister for Families and Children.

Commission for Children and Young People Act 2012 (Vic.)

Liana Buchanan, Principal Commissioner

Vic.

The Commissioner for Aboriginal Children and Young People works within the Children’s Commission and reports to the Victorian Parliament.

Commission for Children and Young People Act 2012 (Vic.)

Justin Mohamed

WA

The Commissioner is independent and reports to the WA Parliament.

Commissioner for Children and Young People Act 2006 (WA)

Colin Pettit, Commissioner

What do offices of commissioners and guardians do?

The role and activities of children's commissions and guardians differ between jurisdictions. Some take a broad focus and represent all children and young people, while others focus on children and young people who are at risk or those who come into contact with child protection systems.

As well as advocating for children's rights and reviewing legislation, children's commissioners and guardians may also:

  • provide community education
  • promote child-safe environments
  • administer child death inquiries or reviews
  • provide pre-employment screening for people in child-related employment
  • conduct research on issues affecting the safety and wellbeing of children.

Table 2 provides a summary of the main activities and the role of each state and territory commission.

For further information regarding state legislation, readers are encouraged to visit state and territory commissioner websites (see Table 1).

Table 2: Specific roles and activities of commissioners and guardians

Jurisdiction

Role of commissioner/guardian

National

The commissioner’s role is to promote respect and understanding of the human rights of children in Australia through research, education and discussion; and to ensure government policy and legislation recognises and protects the human rights of children (Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012).

ACT

The commissioner's role is to: consult with children and young people on issues that are important to them and support others to consult with children and young people; ensure the commission is accessible to children and young people; resolve complaints and concerns; and review systemic issues that affect children and young people such as changes in policy or legislation, new research findings or service improvements (Australian Human Rights Commission Act 2005).

NSW

The advocate's role is to: consult with and promote the participation of children and young people in decision making; make recommendations to legislation, policies, reports and practices that affect children and young people; conduct research and inquiries into issues that affect children and young people; and work with the minister to prepare NSW’s strategic plan for children and young people (Advocate for Children and Young People Act 2014).

The guardian's role is: to promote the rights and interests of children and young people in out-of-home care; implement and monitor the Working With Children Check; and administer accountability measures for child employment, carers, adoption services, out-of-home care services and the Child Sex Offender Counsellor Accreditation Scheme (Children and Young Persons (Care and Protection) Amendments Act 2006).

NT

The commissioner's role is: to protect and care for vulnerable children through investigating complaints, undertaking inquiries and monitoring responses to complaints and inquires; monitor the Care and Protection of Children Act 2007 (NT) and Territory Families’ response to abuse allegations; convene the Child Deaths Review and Prevention Committee; and promote awareness of the rights, interests and wellbeing of vulnerable children (Children’s Commissioner Act 2016; Northern Territory Government, 2018a).

The Royal Commission into the Protection and Detention of Children has recommended changes to these roles, recommending that the Children’s Commissioner be replaced by a new Commission for Children and Young People. It was recommended that this new body has greater remit and powers than the current commission and that it covers all children and young people, not just those defined as vulnerable (Royal Commission, 2017). The Northern Territory Government has announced that it will implement the intent and directions of these recommendations and will establish the new commission within three years following a consultation process to determine its final design and responsibilities (Northern Territory Government, 2018b).

Qld

The principal commissioner and the commissioner have a number of functions that enables the commission to promote the safety, wellbeing and best interests of children and young people in Queensland. These are: overseeing and improving the child protection system; ensuring the community is informed about services for children and families; coordinating research to inform policy and practice; advising on legislation, policy, practice and service delivery; and working to build capacity and increase collaboration to improve services for children, young people and families (Family and Child Commission Act 2014).

The Office of the Public Guardian supports children in care through two programs; the community visitor program and the child advocacy program. The community visitor program provides children in out-of-home care with face-to-face visits where a community visitor works with the child to ensure their rights and interests are met. Within the child advocacy program, child advocates are lawyers who provide support and representation on legal matters to children or young people in the child protection system (Family and Child Commission Act 2014; Public Guardian Act 2014; Queensland Government, 2016).

SA

The commissioner’s role is to promote and advocate for the rights, interests and wellbeing of children and young people. This is done through: making recommendations to government and examining systemic issues relating to children and young people; conducting research and producing reports; and ensuring that South Australia meets its international obligations. The commission also seeks to engage children and young people to encourage their participation in decision making that affects their lives (Government of South Australia, 2018; The Children and Young People (Oversight and Advocacy Bodies) Act 2016).

The guardian's role is to: advocate for, monitor and promote the best interests of children and young people under guardianship of the minister, and to advise the minister about whether their needs are being met; and to conduct inquiries and advise the minister about systemic reform to the out-of-home care system (Government of South Australia, 2005).

Tas.

The commissioner's role is to: monitor, promote and advocate for the rights, interests and wellbeing of children and young people; promote and encourage the participation of young people in decision making; support policy development on matters that relate to children and young people; and assist Tasmania to meet national and international obligations around children and young people (Commissioner for Children and Young People Act 2016;Government of Tasmania, 2018).

Vic.

The Principal Commissioner and the Commissioner for Aboriginal Children and Young People lead the Commission for Children and Young People. The commission has three main functions: undertaking policy analysis, research and communicating findings on issues relevant to children and young people; conducting child death and other inquiries, and informing systemic reform in the child protection and broader service system; and monitoring out-of-home care and other services for vulnerable children and young people, including receiving reports of serious incidents (Commission for Children and Young People Act 2012).

WA

The commissioner's role is to advocate on behalf of children and young people; consult with children, young people, families and relevant organisations and promote their participation in decision making; undertake and commission research and inquiries to do with children and young people’s wellbeing; monitor children and young people’s complaints made against government agencies and the investigation of these complaints; and review legislation, policies, practices and services that affect children and young people (Commissioner for Children and Young People Act 2006).

References

Advocate for Children and Young People Act 2014 (NSW).

Australian Human Rights Commission Act 2005 A2005-40 (ACT).

Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012 (Cth).

Children and Young Persons (Care and Protection) Amendments Act 2006 (NSW).

Children’s Commissioner Act 2016 (NT).

Children’s Protection (Miscellaneous) Amendment Act 2005 (SA).

Commission for Children and Young People Act 2012 (Vic.).

Commissioner for Children and Young People Act 2006 (WA).

Commissioner for Children and Young People Act 2016 (Tas.).

Family and Child Commission Act 2014 (Qld).

Public Guardian Act 2014 (Qld).

The Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA).

Australian Children’s Commissioners and Guardians. (2017). Australian Children’s Commissioners and Guardians Communique 15–16 November 2017. Canberra: Australian Children’s Commissioners and Guardians.

Council of Australian Governments. (2009). Protecting children is everyone's business: National framework for protecting Australia's children 2009–2020. Canberra: Department of Social Services. Retrieved from www.dss.gov.au/our-responsibilities/families-and-children/publications-articles/protecting-children-is-everyones-business

Government of South Australia. (2018). About the Commissioner for Children and Young People. Adelaide: Government of South Australia. Retrieved from www.ccyp.com.au/about-ccyp/

Government of Tasmania. (2018). About the Tasmanian Commissioner for Children and Young People. Hobart: Government of Tasmania. Retrieved from www.childcomm.tas.gov.au/home-page/about/

Northern Territory Government. (2018a). About the Northern Territory Children’s Commissioner. Darwin: Northern Territory Government. Retrieved from https://occ.nt.gov.au/about

Northern Territory Government. (2018b). Safe, thriving and connected: Generational change for children and families. Darwin: Northern Territory Government. Retrieved from newsroom.nt.gov.au/mediaRelease/25505

Office of the eSafety Commissioner. (2018). About the Office of the eSafety Commissioner, legislation. Canberra: Office of the eSafety Commissioner. Retrieved from www.esafety.gov.au/about-the-office/legislation

Queensland Government. (2016). ‘About the OPG’ on Office of the Public Guardian. Brisbane: Queensland Government. Retrieved from www.publicguardian.qld.gov.au/child-advocate/about-us

Royal Commission into the Protection and Detention of Children in the Northern Territory. (2017). Report of the Royal Commission and Body of Inquiry into the Protection and Detention of Children in the Northern Territory. Canberra: Royal Commission into the Protection and Detention of Children in the Northern Territory. Retrieved from childdetentionnt.royalcommission.gov.au/Pages/Report.aspx#_Read

United Nations. (1989). Convention on the rights of the child. Geneva: Office of the High Commissioner for Human Rights.

Authors and Acknowledgements

This paper was updated by Nick Heyes, Senior Project Officer with the Child Family Community Australia information exchange at the Australian Institute of Family Studies.

Previous editions have been compiled by Jessica Smart, Lucy Ockenden, Rachel Carson, Veronica Meredith, Debbie Scott, Alister Lamont and Prue Holzer.

The feature image is by Dustin JensenCC BY-SA 2.0.

Publication details

CFCA Resource Sheet
Published by the Australian Institute of Family Studies, June 2018.
Last updated June 2018

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