Children's commissioners and guardians

Children's commissioners and guardians

CFCA Resource Sheet— May 2015
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 explains the differences between the various offices in each state and territory.

This information is provided as a guide only, and 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.

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. In 1989, the United Nations Convention on the Rights of the Child established the first legally binding instrument to protect the rights of children. The convention sets out to protect children's rights by setting basic standards in health care, education and legal, civil and social services (United Nations, 1989). Australia ratified the convention in 1990 and has since established several initiatives to safeguard the interests and wellbeing of all children, including the development in each state and territory of an Office of Youth Affairs or equivalent (Kenney & Tait, 2005).

Queensland became the first state to establish an independent statutory body in 1996 with the development of the Queensland Commission for Children and Young People and Child Guardian (CCYPCG); however, this body was dissolved in 2014 with functions distributed between two newly established statutory bodies and existing departments. Details of these changes are described below.

Since 1996, all other states and territories in Australia have developed independent children's commissions and/or guardians intended to represent and ensure the rights of all children. The establishment of independent state bodies has been important for providing a voice for children in decision-making.

In February 2013, Megan Mitchell was appointed the first National Children's Commissioner for a 5-year period from 25 March 2013. Prior to Ms Mitchell's appointment, there were several campaigns to establish a National Commissioner for Children and Young People to provide a broad advocacy and leadership role for children. Appointing 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 in 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 early 2013, the Coalition, the then opposition party, committed to establishing a Children's e-Safety Commissioner and an effective complaints system, backed by legislation, to quickly remove from social media any harmful material targeted at an Australian child.

In March 2015, the Enhancing Online Safety for Children Bill 2014 was passed. The legislation establishes the office of the Children's e-Safety Commissioner within the Australian Communications and Media Authority. Alistair MacGibbon was appointed the first Children's e-Safety Commissioner, to commence his role on 1 July 2015. 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.

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.

How is a commissioner appointed?

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

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 NSW have separate commissioners and guardians. South Australia has a children's guardian and no children's commissioner.

Who are the commissioners?

Table 1 provides a national overview of children's commissions in Australia, identifying the relevant body in each state and territory 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 was established within the Australian Human Rights Commission Human Rights Commission Act 1986 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 Alistair MacGibbon
ACT The Children and Young People Commissioner works within the ACT Human Rights Commission. The Human Rights Commission Act 2005 Alasdair Roy, 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 works 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 Kerryn Boland, Guardian
NT The Children's Commissioner works within the Office of the Children's Commission. The commission is an independent statutory office reporting to the Legislative Assembly through the Minister for Child Protection. Care and Protection of Children Act 2007; Children's Commissioner Act 2013 Colleen Gwynne, Commissioner
Qld The Queensland Family and Child Commission (QFCC) was established on 1 July 2014 as result of the recommendations outlined in the Queensland Government's response to the Queensland Child Protection Commission of Inquiry. There are two 2 commissioners that oversee the functions of the QFCC. Family and Child Commission Act 2014

Cheryl Vardon, Principal Commissioner

Tammy Williams, Commissioner

Qld The Public Guardian in Queensland became the responsible advocate for children in out-of-home care as of 1 July 2014. 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 Families and Communities. Children's Protection (Miscellaneous) Amendment Bill 2005 Amanda Shaw, Guardian
SA The Council for the Care of Children is an independent advisory body that advises the Minister for Families and Communities. Children's Protection Act 1993 Professor Fiona Arney (Council Chair)
Tas. The Commissioner for Children and Young People is an independent, statutory office responsible to the Parliament of Tasmania. Children, Young Persons and Their Families Act 1997; Youth Justice Act 1997 Mark Morrissey, Commissioner
Vic. The Commissioner for Children works within the Children's Commission and reports to the Victorian Parliament. The Commission for Children and Young People Act 2012 Liana Buchanan, Principal Commissioner
WA The Commissioner 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 commissions/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 state commissioners/guardians
Jurisdiction Commissioner/guardian role
ACT The commissioner's role is to consult and encourage the participation of children in decision-making; consider complaints; ensure service standards in children's services are met; and encourage and assist service users and providers to make improvements to services.
NSW The advocate's role is to advocate for and promote the participation of children and young people in decision-making; provide input in to laws and policies that affect children and young people; undertake research awareness and understanding of issues affecting children and young people; promote child-safe and child-friendly organisational policy and practice; hold inquiries into important issues relating to children and young people; and produce publications and resources about children and young people's issues.
The guardian's role is to promote the best interests of children in out-of-home care; ensure the rights of all children and young persons in out-of-home care are safeguarded and promoted; implement and monitor the Working With Children Check; administer the Child Sex Offender Counsellor Accreditation Scheme; accredit non-government adoption services providers; authorise the employment of children under the age of 15, and child models under the age of 16, in the entertainment sector; and accredit agencies and monitor their responsibilities.
NT The commissioner's role is to act as an advocate for and to ensure the wellbeing of vulnerable children, particularly Indigenous children, and to represent their interests at all levels of government and in the community. Specifically the role of the commission is to investigate, resolve and report on complaints about services provided to "protected" children; review and monitor the child protection and out-of-home care system in the NT; host and convene the Child Deaths Prevention and Review Committee covering all child deaths in the NT; and provide advice to government and respond to ministerial requests pertaining to child protection matters.
Qld The Principal Commissioner's role works to support the reform of the child protection and family support system. Specifically the Principal Commissioner oversees the child protection system, including services for vulnerable children and young people and their families; monitors, reviews and reports on the performance of the system; promotes and advocates for the safety and wellbeing of children and young people, and the shared responsibility of families and communities to protect and care for children and young people. Furthermore the Principal Commissioner helps to educate and provide the community with information on services available and how the child protection and family support system works. The Principal Commissioner may also provide advice to agencies on laws, policies, practice and services impacting children and young people and families.

The Public Guardian has specific responsibilities to support children and young people in the child protection system. The Public Guardian has responsibility for the Community Visitor program for children in out-of-home care; and provides help and support to children and young people in out-of-home care as well as children and young people in residential care, mental health facilities and in detention or prison. The Public Guardian also has responsibilities to provide individual lawyer/advocates for children and young people in the child protection system, ensuring their views and wishes are taken into consideration when decisions are made about them and their care arrangements. Through a statewide network of child advocacy officers, the Public Guardian will provide children in out-of-home care with advice, information and help in mediating disputes; making complaints; before, during and after meetings; and before, during and after court and tribunal hearings.

SA The guardian's role is to advocate for the best interests of children and young people under the guardianship, or custody, of the minister; provide independent monitoring of the circumstances of children and young people in out-of-home care; monitor the quality of out-of-home care; investigate and report to the minister on matters referred to the guardian; and advise the minister on whether the needs of children in care and guardianship are being met.

The Council for the Care of Children's role is to promote and advocate the rights and interest of all children in South Australia; report to the South Australian Government on how children are faring; and inform the South Australian community about the best care and support for children.

Tas. The commissioner's role is to ensure that legislation, policy and practices that affect the health, welfare, care, protection and development of all children operate in the best interests of the child; identify and act on issues affecting children and young people; conduct research on issues related to children; consult with ministers, government agencies, non-government organisations and the community; and seek the views of children about issues affecting them.
Vic. The commissioner's role is to provide advice to ministers, government departments, health services and human services relating to the safety and wellbeing of vulnerable children and young people and child safety as requested; promote the interests of vulnerable children and young people; conduct inquiries into service provision or omission relating to children who have died and were known to child protection within 12 months of their death, the safety and wellbeing of an individual or group of vulnerable children and young people or a health service, human service or school where there are persistent or recurring systematic concerns. Additionally, the commissioner is to monitor Victoria's out-of-home care system, monitor and report on the effectiveness of strategies relevant to the safety and wellbeing of vulnerable children and young people, promote child-friendly and child-safe policies and practices in Victoria, review and report on the administration of the Working with Children Act 2005 and educate and inform the community about the Act, and perform any other functions given to the commission by the Act or any other Act.
WA The commissioner's role is to advocate on behalf of children and young people; promote strategies and outcomes that enhance their wellbeing; monitor, and inquire into, children's wellbeing in the community; monitor government agency investigations of complaints made by children and young people; promote children's participation in decision-making; promote community awareness about the wellbeing of children and young people; and consider and make recommendations on laws, policies, programs and services affecting children and young people.

References

  • Council of Australian Governments. (2009).Protecting children is everyone's business: National framework for protecting Australia's children 2009-2020. Retrieved from <www.fahcsia.gov.au/our-responsibilities/families-and-children/publications-articles/protecting-children-is-everyones-business>.
  • Kenney, N., & Tait, A. (2005). Commissions for children and young people: Comparing state and territory statutory bodies for protecting the rights and interests of children.Child Abuse Prevention Newsletter,13(1).
  • 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 Lucy Ockenden, Communications and Research Officer with the Child Family Community Australia information exchange at the Australian Institute of Family Studies.

The author acknowledges the contribution of Rachel Carson, Senior Research Officer of the Family Law team at the Australian Institute of Family Studies.

Previous editions have been compiled by Veronica Meredith, Debbie Scott, Alister Lamont and Prue Holzer.

The feature image is by Dustin Jensen, CC BY-SA 2.0.

Publication details

CFCA Resource Sheet
Published by the Australian Institute of Family Studies, May 2015.

Publication meta

We'd appreciate if you share with us how useful you found this paper and how you might use the information (such as forwarding it to a colleague, using it to inform training/policy/practice, or including information in a newsletter/bulletin).

Creative Commons - Attribution CC BYCopyright information

Need some help?

If you're having trouble finding the information or resources you need - we're here to help.

Ask us a question

CFCA news

Sign up to our email alert service for the latest news and updates

Subscribe