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COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE BILL 2005
Introduction and First Reading

Bill introduced, on motion by Ms S.M. McHale (Minister for Community Development), and read a first time.
Explanatory memorandum presented by the minister.

Second Reading

MS S.M. McHALE (Kenwick - Minister for Community Development) [12.18 pm]: I move -

That the bill be now read a second time.

When the Labor Party came to government in 2001, our agenda was to improve the legislation relating to and the quantity and quality of services provided for vulnerable and at-risk children. At the same time, we were committed to strengthening outcomes for all children and young people. Our first major task was to develop a strong, coordinated response to the Gordon Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities. Reforming legislation affecting children’s lives was the next priority, hence the enactment of the Children and Community Services Act, the Adoption Amendment Act (No. 2) and the Working with Children (Criminal Record Checking) Act. Associated with these priorities was the imperative to increase the level of staffing, to improve the services offered and to improve the quality of work undertaken by staff, hence the review of children abused in care, the establishment of the duty of care unit and the independent review of the adequacy of the Department for Community Development to protect children in care. Now that these and other initiatives are in place or under way, it is time to build on the foundations we have laid.
The bill before us provides for a mechanism that is dedicated to enhancing the best interests and wellbeing of all children. Our children are our future. This bill will help promote a better future for all Western Australians.

In May last year I announced that we would proceed with the establishment of a children’s commission, and this bill delivers that commitment. This bill is the product of an extensive consultation process. There has been genuine input from expert stakeholders, operational groups and young people. Through the Office for Children and Youth, 212 children and young people from across the state - from Esperance to Perth, the Pilbara, Kimberley and goldfields - were consulted. A forum for non-government organisations was held, and there have been individual meetings with key stakeholders.

Among the many who have helped shape our approach, I would like to thank and acknowledge the assistance of the children’s commissioners of New South Wales and Queensland, the WA Ministerial Advisory Council on Child Protection; the CREATE group, Professor Fiona Stanley, Magistrate Sue Gordon, the Western Australian Council of Social Services, the Youth Affairs Council, Meerilinga Young Children’s Foundation and the Legal Aid Commission.

Ms S.E. Walker interjected.

The SPEAKER: Order! I am actually interested in the management of this house. I call the member for Nedlands to order for the first time.

Ms S.M. McHALE: I also acknowledge the work of the Select Committee on Advocacy for Children (Appointment of a Commissioner for Children) chaired by Hon Barbara Scott, MLC and its contribution to the model.

We have had the advantage of learning from lessons elsewhere in developing an appropriate model. Therefore, this bill has been tailored to the needs of Western Australia. The keystone of this model is that the commissioner’s paramount consideration, to be set in the legislation, is acting in the best interests of children. That consideration will guide all the functions and powers under the act. This is consistent with the guiding principle under the Children and Community Services Act.

Although the commissioner will be directed to have special regard to the needs of indigenous children in performing her or his functions, the bill will apply to all children under 18 years and will include but not be limited to children at risk and those in care.

The commissioner will be appointed by the Governor, similar to other commissioners such as the Commissioner for Equal Opportunity, the Information Commissioner, the Parliamentary Commissioner for Administrative Investigations, the Auditor General and the Inspector of Custodial Services. The commissioner’s functions and powers are deliberately broadly based. They are not directed at individual cases, nor limited to only children at risk. They encompass matters such as social and economic issues, health, recreation, education, safety and the wellbeing of children generally. The commissioner will be uniquely placed to work cooperatively with both government and non-government organisations that provide services to children and young people. Importantly, the commissioner will also be able to inform government and the community when children and young people are not getting a fair go and how things could be improved for them.

The Commissioner for Children and Young People will have a broad mandate to consider the full range of issues affecting children and young people. The commissioner will have the function of promoting and monitoring the overall wellbeing of children. She or he also will be able to recommend changes to relevant legislation, policies, practices and services. The commissioner will be able to establish and conduct inquiries at his or her discretion. The commissioner has powers to establish his or her advisory committees so that he or she can gain leverage from other relevant experts in their field. Other functions include the provision of training, research, public education, information and advice to children and young people.

Perhaps the most significant function is the commissioner’s capacity to conduct special inquiries into issues affecting children. The bill requires that, before a special inquiry can be undertaken, consultation must take place with the minister. However, unlike the position in New South Wales, the commissioner’s discretion to hold a special inquiry will not be subject to control by the minister. In this way the model we have chosen will make the commissioner’s role the most powerful of its type in Australia. The powers associated with a special inquiry include the power to conduct hearings, to compel the production of information and documents, to enter private premises and to require individuals to give evidence on oath at hearings. These are major powers and they should not be triggered lightly or used often. However, when they are used, no government department or non-government agency will be able to ignore or thwart a commissioner’s investigation. The government anticipates that the commissioner’s reputation and standing will allow him or her to develop a culture of cooperation with his or her work and relationships, and that he or she should need to conduct special inquiries only rarely.

Complaints made by, or on behalf of, children will continue to be investigated by the existing complaint bodies. However, because it will be highly visible to children and young people, the Commission for Children and Young People will undoubtedly function as a referral point for children and help them access effective channels for complaint. Although in performing his or her functions the commissioner will be required to have regard to the provisions of the United Nations Convention on the Rights of the Child, these will not be mandated in a way that could fetter the commissioner.

As is the case with the children’s commissioner in New South Wales and those proposed for or established in England and Scotland, the commissioner is not to investigate complaints of an individual child. This is intended to help avoid duplication and overlapping with the investigatory functions of other competent agencies, as well as to help avoid a potential conflict with the commissioner’s key advocacy role. However, the commissioner will have extensive referral powers to deal with such complaints. In addition, if a case of an individual child raises systemic issues or matters relevant to other children, this may be the subject of an inquiry or special inquiry.

The commissioner will be independent and free from direction or control in the performance of his or her functions. The minister will retain a power to give a general direction, such as with regard to compliance with a general policy of government. An example could be the gender balance policy for the make-up of government boards and committees. Any directions can be given only after consultation with the commissioner, will be required to be given transparently and will need to be tabled. The commissioner will be required to comply with a direction unless there are exceptional circumstances. This is consistent with the principles of accountability identified in the Burt Commission on Accountability report. On the same basis, the minister will have access to information in the hands of the commissioner so that the minister can answer questions in this place. The government believes that this approach will give the commissioner independence and freedom to advocate for the wellbeing of children and to be inclusive of their views, while maintaining appropriate levels of ministerial responsibility and accountability.

The bill will also enable the transfer of the criminal records screening function under the Working with Children (Criminal Record Checking) Act 2004 to the commissioner, in line with the position in New South Wales and Queensland. This important task needs to be independent of the agencies and service sectors for which it is designed. After further consideration, it was felt that the commission is the appropriate location for this function. However, heed needs to be taken of the cautionary comments in the select committee report that the function must not overwhelm the commission’s other responsibilities. The bill requires the commissioner to ensure that the views of children are represented by any means he or she considers suitable and appropriate. For this purpose, one of the commissioner’s advisory committees may be a youth advisory committee of children and young people, and collaboration needs to occur with the Office for Children and Youth.

To facilitate the review of legislation, policies, practices, planning and delivery of services affecting children, the commissioner will be able to require agencies to provide information about their policies and practices. The commissioner will be given a right of access to information held by government agencies. This is more than a mere enabling provision. It creates a right of access to information for the commissioner. The intention, in combination with the requirement to act in cooperation with other agencies and to consult with them, is to promote collaboration and to avoid barriers to information sharing and adversarial relationships. There are two safeguards to ensure that information is used only for the purposes that it is required. Firstly, there are confidentiality obligations on the part of the commissioner and staff. Secondly, agencies will not be required to provide information that is exempt. Classes of exempt information are cabinet documents and information the subject of legal professional privilege.

The commissioner will be empowered to issue three kinds of report: annual reports on the performance of the commission; reports on the outcome of special inquiries; and reports of general inquiries or research on any matter affecting children. The commissioner will report annually and directly to both houses. Before forwarding a report for tabling in Parliament, the commissioner will first provide a draft report to the minister. This will enable the minister to ask the commissioner to undertake further consultation or make comments on the draft report. The commissioner will not be required to alter the report as a result of the minister’s comments, but will be required to include them in the report.

There is a requirement that after a period of five years the minister will review the effectiveness of the act and report to the Parliament on its operation.

In summary, the features of the model are the wellbeing of all children, independence, a broad focus on systemic issues, comprehensive statutory powers, the avoidance of duplication, and an emphasis on accessibility. However, the wellbeing of children cannot be legislated for. This will depend on many elements: the contribution of parents and acceptance by them of their primary responsibility; the contribution of children and young people themselves and their willingness and ability to grow and learn; and the support of family, the community, the environment, schools, the health system and the justice system. Although government does have a role to play, it is a supporting role, helping to provide the opportunities needed for the wellbeing of children. This bill will help to build a better future for Western Australians and I commend the bill to the house.

Mr C.J. Barnett: Don’t you think you should have acknowledged the role of Hon Barbara Scott?

Ms S.M. McHALE: If the member for Cottesloe would listen instead of carping, he would have heard this speech. He is a disgrace!

The SPEAKER: Order, members!

Debate adjourned, on motion by Dr G.G. Jacobs.