Resource Sheet No. 15
October 2009

Children's commissioners and guardians

Compiled by Alister Lamont & Prue Holzer
National Child Protection Clearinghouse
Published by the Australian Institute of Family Studies
ISSN 1448-9112 (Online)

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Children have a special need for protection and policies and 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). To further protect and advocate for children's rights, 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. Since then, each state and territory in Australia has 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 recent years, there have been several campaigns to establish a National Commissioner for Children and Young People to provide a broad advocacy and leadership role for children. Proposals have called for a national commissioner to provide leadership within and between governments, and to provide a national code to ensure that all organisations have procedures in place to prevent child abuse (Kenney & Tait, 2005).

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. 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 which 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 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).

Table 1. Relevant legislation and Commissioner/Guardian details

Jurisdiction	Details	Act	Head/office holder
ACT	The Children and Young People Commissioner works within the ACT Human Rights Commission. <www.hrc.act.gov.au/index.cfm>	The Human Rights Commission Act 2005	Alasdair Roy, Commissioner
NSW	The Children and Young People Commissioner works within the NSW Commission for Children and Young People. The commission is an independent organisation, which reports to the NSW parliament. <www.kids.nsw.gov.au/index.cfm>	Commission for Children and Young People Act 1998	Gaye Phillips, Commissioner
NSW	The NSW Children's Guardian works within the Office for Children, the Children's Guardian and reports directly to the Minister for Community Services. <www.kidsguardian.nsw.gov.au>	Children and Young People (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. The commission website is currently under construction.	Care and Protection of Children Act	Dr Howard Bath, Commissioner
QLD	The commissioner works within the QLD Commission for Children and Young People and Child Guardian. The commission is an independent body. <www.ccypcg.qld.gov.au/index.html>	The Commission for Children and Young People and Child Guardian Act 2000	Elizabeth Fraser, 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 Families and Communities. <www.gcyp.sa.gov.au/cgi-bin/wf.pl>	Children's Protection (Miscellaneous) Amendment Bill 2005	Pat Simmons, Guardian
SA	The Council for the Care of Children is an independent advisory body that reports to the Minister for Families and Communities.	Children's Protection Act 1993	Peter Bicknell (Council Chair)
TAS	The Commissioner for Children works within the Office of the Commission for Children, Tasmania. The commission is an independent body responsible to the parliament of Tasmania.<www.childcomm.tas.gov.au>	Children, Young Persons and Their Families Act	Paul Mason, Commissioner
VIC	The Child Safety Commissioner works within the Office of the Child Safety Commission. The commission provides advise to the Minister for Community Services and the Minister for Children. <www.ocsc.vic.gov.au/index.htm>	The Child Wellbeing and Safety Act 2005	Bernie Geary OAM, Commissioner
WA	The commissioner works within the Commission for Children and Young People and reports to the WA Parliament. <www.ccyp.wa.gov.au>	Commissioner for Children and Young People Act 2006	Michelle Scott, Commissioner

NOTE: New South Wales includes a commissioner and a guardian.

What is the difference between a commissioner and a guardian?

While 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. In most states and territories the commissioner also acts as the guardian. New South Wales has a separate commissioner (the NSW Commission for Children and Young People) and guardian (the NSW Office for Children - Children's Guardian) and 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 commissoner, 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 as the primary functions of the council are similar to a children's comissioner.

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; and conduct research on issues impacting on the safety and wellbeing of children. In New South Wales, Victoria and Queensland, children's commissions also provide pre-employment screening for people in child-related employment and conduct research. At present, the Queensland Commission for Children and Young People and Child Guardian is the only state commission able to provide a complaint mechanism in relation to the delivery of children's services. Complaints on children's services put forward to other state commissions are referred to state departments or other organisations. Table 2 provides a summary of the main activities and the role of each state and territory commission.

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 commissioner's role is to promote the participation of children and young people in decision making; provide input into 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; implement and monitor the Working With Children Check; 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; 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 commissioner's role is to monitor and review laws, policies and practices impacting on services provided to children and young people and on the safety and wellbeing of vulnerable children and young people; administer a state-wide Community Visitor Program for children and young people in alternative care - including foster care; receive and investigate complaints; maintain the Child Death Register; administer the Child Death Case Review Committee; administer the working with children check screening program; educate the community to comply with the commission's Act; conduct research; and promote laws, policies and practices that uphold the rights, interests and wellbeing of children and young people, particularly those at risk.
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 and non-government organisations and the community; and seek the views of children about issues affecting them.
VIC	The commissioner's role is to promote child-safe environments; monitor Victoria's out-of-home care system; conduct inquiries into the deaths of children known to the child protection service system, and into other matters referred by the Minister for Children; and administration of the Working With Children Act 2005 including educating and informing the community about the 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.

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

References

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). Retrieved 29 April 2009, from <http://www.aifs.gov.au/nch/pubs/newsletters/nl2005/summer.html#nk>

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

Authors

Alister Lamont is a Research Officer for the National Child Protection Clearinghouse at the Australian Institute of Family Studies. At the time of writing, Prue Holzer was a Senior Research Officer for the National Child Protection Clearinghouse at the Australian Institute of Family Studies. Prue is now a Senior Analyst with the Productivity Commission.

The National Child Protection Clearinghouse endeavours to ensure that information is accurate and up-to-date. A time delay may exist between change in commissioner details and the update of the Resource Sheet. If you are aware of information in a clearinghouse Resource Sheet that is incorrect or out-of-date, contact us at: <www.aifs.gov.au/nch/contact.html>.

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Resource Sheet No. 15 October 2009