Regarding Rights

Academic and activist perspectives on human rights

New National Children’s Commissioner — Triumph or Timewaster?

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By Mhairi Cowden

Following an intense few months of lobbying by advocacy groups, it was announced earlier last year that the Gillard government would establish a new National Children’s Commissioner within the Australian Human Rights Commission (AHRC).

For nearly 20 years advocacy groups within Australia have been calling for the role to be established and it is exciting to see Australia finally take an important step forward in fulfilling its obligations under the UN Convention on the Rights of the Child (CROC).

Having achieved this important goal it is now worth asking — will a National Children’s Commissioner work to enhance and secure the rights of Australian children, or will they be just another adult in the hierarchy of government?

Here I present a case for cautious optimism.

What will it look like?

The National Children’s Commissioner will join the existing commissioners within the AHRC. Currently there are five commissioners covering Sex Discrimination, Race Discrimination, Disability Discrimination, Age Discrimination, and Aboriginal and Torres Strait Islander Social Justice. These Commissioners do important work and it is exciting to see that there will be a new National Commissioner with the specific remit of representing Australian children.

Many countries have similar offices, with differing powers and remits and often with mixed success. Some are agents of the government, some have a more child welfare focus and others are directly responsible for the implementation of CROC within that country.

Currently in Australia all States and Territories have children and young people commissioners. However there are issues of national importance that need the cohesive direction of a central office.

The Australian Commissioner will work to complement but not duplicate the work of state and territory commissioners. The National Commissioner, according to the Attorney General’s office, will,

“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.” [1]

The role, therefore, will be one primarily of advocacy on behalf of children and of reviewing relevant legislation that may impact upon children’s interests. So far state and territory commissioners have played an important role representing children’s interests at the state level – will a new National Commissioner be the same?

So what does it mean for Australian children?

The first thing to say is that we don’t know what it means to Australian children as the Commonwealth government has failed to ask them. In the press conference announcing the position Attorney General Nicola Roxon stated,

“The Children’s Commissioner will ensure the voices of children and young people are heard in the development of Commonwealth policies and programs.” [2]

The primary function of the new National Commissioner, as stated by the Attorney General, is to ensure that children’s voices are heard on a national level, that they will have a dedicated advocate. Despite this, children were not consulted in regards to what sort of work the Commissioner should be doing or more importantly what kind of person would make an appropriate Commissioner.

This is a fairly discouraging false start. The assumption that children will not care or have opinions regarding the role of National Commissioner or the type of person they would see as appropriate for that role, reflects deep assumptions about children’s incompetence which does not bode well for true advocacy and consultation with children in the future.

Consulting children is not just a courtesy, it is their right. Children have the right to information, freedom of thought and to be heard.

Article 12 of the Convention on the Rights of the Child states that,

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, 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, in a manner consistent with the procedural rules of national law.

Families Australia, UNICEF and Save the Children argue that,

“Children and young people should be involved meaningfully in all aspects of the Office of the National Children’s Commissioner”. [3]

Consultations conducted by the Australian Children’s Rights Taskforce with children and young people between the ages of 11 and 25 years of age demonstrate that children and young people have very clear opinions regarding the new role.

For example, consultation demonstrated that children and young people wanted someone professional so they would be ‘taken seriously’ by government, but also someone who possessed the right kind of personal attributes to engage with children and young people. They should be approachable and able to understand children on a deeper level than most adults.

Interestingly, the consultation also showed that children suggested that a National Children’s Commissioner with a youthful (or attractive looking) face would send out a positive and optimistic impression to the rest of society. This indicates that for children it is important how their representative appears to other adults and the wider community.

Other attributes children identified included; honesty, passion, empathy, a sense of humour, proactivity and bravery. Far from being superficial, these consultations show that children and young people present carefully considered opinions and that consultation and participation is important to them.

Different Representation

These qualities are important as the job of representing children is different from representing adults.

Other groups in society may not be empowered but they often have the capacity or the outlets to influence government, or even more simply the capacity to inform their representative of the relevant concerns they have. Children often do not have this. Children are often disempowered and extremely young children are unable to communicate their interests, their rights and their needs. Children need to be represented because they lack the capacity to represent themselves.

Therefore the role of National Children’s Commissioner must engage in child centred approaches to representation. The new Commissioner must walk the line between participation, consultation and representation for those that cannot represent themselves.

A Case for Cautious Optimism

The worry is that the call for a children’s commissioner has been the focus of the children’s rights advocacy community for so long that we may have forgotten that life must continue after we have got what we have asked for.

Children need to be included, new forms of representation need to be encouraged and pursued and a culture of seeing children as right holders needs to be fostered. The new National Children’s Commissioner has the capacity to do all of these things but the role also represents the risk of creating another adult in a position of power ill equipped to listen to the voices of children. Here is hoping that the first person to be appointed will have the drive and direction to ensure that the office helps to advance children’s rights in Australia.

It is too early to say whether the National Children’s Commissioner will be a triumph or a timewaster for children’s rights in Australia. What is needed is constant advocacy to ensure that false starts and lack of consultation do not happen again in the future.

However, it has become increasingly clear that independent institutions dedicated to the promotion of children’s rights are essential for the development of a culture that takes these rights seriously.

So a National Commissioner is not only essential to achieve practical advocacy outcomes for children but is also an important symbolic move towards entrenching a culture of rights for children within Australia.

A move that this author hopes will be successful.

[1] http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/29-April-2012—Gillard-Government-to-establish-National-childrens-commissioner.aspx

[2] http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/29-April-2012—Gillard-Government-to-establish-National-childrens-commissioner.aspx

[3] http://www.familiesaustralia.org.au/publications/pubs/coalition/nationalchildrenscommissioner.pdf

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