Children's commissioners and guardians

Children's commissioners and guardians

CFCA Resource Sheet— November 2016
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 outlines their functions in each state and territory.

Children have a special need for protection and policies. Actions concerning children's lives need to be undertaken with a specific understanding of their needs and rights. Australia is a signatory to the Convention on the Rights of the Child (United Nations, 1989) and one of the ways Australia meets its obligations under this convention is through the establishment of children’s commissioners and guardians. These independent bodies have been in place in 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. In Western Australia there is no "commission", as such, but a Commissioner for Children and Young People. While commissioners have several roles, their primary role is to advocate for children's rights and 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 a Children’s e-Safety Commissioner. After several campaigns to establish a National 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 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 commissioners.

In March 2015, the Enhancing Online Safety for Children Bill 2014 was passed, which established the office of the Children's e-Safety Commissioner within the Australian Communications and Media Authority. Andree Wright is currently acting in the role of Children’s e-Safety Commissioner. The Children's e-Safety Commissioner's key role is to administer the complaints system for cyber-bullying material targeted at Australian children, promote online safety for Australian children, and support and encourage measures to improve online safety for Australian children.

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 Children's e-Safety Commissioner is appointed by the Minister of Communications.

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).

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 and New South Wales have separate commissioners and guardians. South Australia has a children's guardian and no children's commissioner, although, at the time of writing, the Attorney-General’s Department is drafting a bill to present to Parliament to establish a Commissioner for Children and Young People.

Who are the commissioners?

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/guardian. While South Australia does not have a commissioner, they do have a Council for the Care of Children, established under the South Australian Children's Protection Act 1993. The council is included in Table 1 because the primary functions of the council are similar to a children's commissioner.

Table 1. Relevant legislation and Commissioner/Guardian details
Jurisdiction Details Act Head/office holder
National The National Children's Commissioner is an independent statutory office within the Australian Human Rights Commission The Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012 Megan Mitchell
National The Office of the Children's e-Safety Commissioner is an independent statutory office within the Australian Communications and Media Authority Enhancing Online Safety for Children Act 2014 Andree Wright (Acting)
ACT The Children and Young People Commissioner is an independent statutory office within the ACT Human Rights Commission. The Human Rights Commission Act 2005 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 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) Amendment Act 2006 Kerryn Boland, Guardian
NT The Children's Commissioner works within the Office of the Children's Commission. The commission is an independent statutory body reporting to the Legislative Assembly through the Minister for Children and Families. Care and Protection of Children Act 2007; Children's Commissioner Act 2013 Colleen Gwynne, Commissioner
Qld The Queensland Family and Child Commission is a statutory body reporting to the Minister for Child Safety Family and Child Commission Act 2014 Cheryl Vardon, Principal Commissioner

Tammy Williams, 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; Guardianship and Administration Act 2000 Natalie Siegel-Brown, Public Guardian
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 Education and Child Development. Children's Protection (Miscellaneous) Amendment Act 2005 Amanda Shaw, Guardian
SA The Council for the Care of Children is an independent statutory body that advises the Minister for Families and Communities. Children's Protection (Miscellaneous) Amendment Act 2005 Simon Schrapel (Council Chair)
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 Mark Morrissey, Commissioner
Vic. The Principal Commissioner for Children and Young People works within the Children's Commission and reports to the Victorian Parliament. Commission for Children and Young People Act 2012 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 Andrew Jackomos, Commissioner
WA The Commissioner is independent and reports to the WA Parliament. Commissioner for Children and Young People Act 2006 Colin Pettit, Commissioner

What do offices of commissioners and guardians do?

The role and activities of children's commissions/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/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; and 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 activities of commissioners/guardians
Jurisdiction Commissioner/guardian role
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 (Commonwealth of Australia, 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 which affect children and young people such as changes in policy or legislation, new research findings or service improvements (Australian Capital Territory, 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 (New South Wales Government, 2015).

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 (New South Wales Government, 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; monitoring the Care and Protection of Children Act and the Child Protection Department’s response to abuse allegations; convening the Child Deaths Review and Prevention Committee; and promoting awareness of the rights, interests and wellbeing of vulnerable children (Northern Territory Government, 2012; 2016).
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 (Queensland Government, 2014a).

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. Child advocates are lawyers who provide support and representation on legal matters to children or young people in the child protection system (Queensland Government, 2014a; 2014b; 2016).

SA 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).

The Council for the Care of Children's role is to inform and advise the minister around the rights and interests of children; to advise the minister on environments, policy and research priorities to improve the safety and wellbeing of children; and to promote the safe care of children by their communities and families (Government of South Australia, 2005).

Tas. The commissioner's role is to monitor, promote and advocate for the wellbeing of children and young people, promoting and encouraging the participation of young people in decision-making, supporting policy development on matters that relate to children and young people; and assisting Tasmania to meet national and international obligations around children and young people (Government of Tasmania, 2016).
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 (Government of Victoria, 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 (Government of Western Australia, 2006).

References

  • Australian Capital Territory. (2005). Australian Human Rights Commission Act 2005 A2005-40.
  • Commonwealth of Australia. (2012). Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012. No. 89.
  • Council of Australian Governments. (2009). Protecting children is everyone's business: National framework for protecting Australia's children 2009-2020. Retrieved from <www.dss.gov.au/our-responsibilities/families-and-children/publications-articles/protecting-children-is-everyones-business>.
  • Government of South Australia. (2005). Children’s Protection (Miscellaneous) Amendment Act 2005 No. 96.
  • Government of Tasmania. (2016). Commissioner for Children and Young People Act 2016 No. 2.
  • Government of Victoria. (2012). Commission for Children and Young People Act 2012 No. 79.
  • Government of Western Australia. (2006). Commissioner for Children and Young People Act 2006 No. 048.
  • New South Wales Government. (2006). Children and Young Persons (Care and Protection) Amendments Act 2006 No. 95.
  • New South Wales Government. (2015). Advocate for Children and Young People Act 2014 No. 29.
  • Northern Territory Government. (2012). About the Northern Territory Children’s Commissioner. Retrieved from <www.childrenscommissioner.nt.gov.au/aboutus.html>.
  • Northern Territory Government. (2016). Children’s Commissioner Act.
  • Queensland Government. (2014a). Family and Child Commission Act 2014 No. 47.
  • Queensland Government. (2014b). Public Guardian Act 2014.
  • Queensland Government. (2016). “About the OPG” on Office of the Public Guardian. Retrieved from <www.publicguardian.qld.gov.au/child-advocate/about-us>.
  • 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 Jessica Smart, Senior Research Officer with the Child Family Community Australia information exchange at the Australian Institute of Family Studies.

Previous editions have been compiled by 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, November 2016.
Last updated November 2016

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