Report of the ACWA, CPC, SNYPIC and YAPA FORUM TO DISCUSS THE GREEN
PAPER A NSW CHILDREN'S COMMISSION
5 March 1998
Metcalfe Room, NSW State Library
Published by the New South Wales Child Protection Council 1998
Edited by Eithne ODonovan
REF: AM2595KS
Level 14, 447 Kent Street, Sydney, NSW 2000
Telephone (02) 9286 7276
Facsimile (02) 9286 7267
Email nswcpc@world.net
CONTENTS Page INTRODUCTION Nigel Spence, Chief Executive Officer, Association
of Children's Welfare Agencies 4 PART 1: PRESENTATIONS Overview Patrick
Parkinson, Associate Professor of Law, University of Sydney 6 Some Models
for a Children's Commission Judy Cashmore, Chairperson, NSW Child Protection
Council 10 Young People's Perspectives Andrew O'Brien and Vanessa Francis,
State Network of Young People in Care (SNYPIC) 16 PART 2: DISCUSSION SESSIONS,
QUESTIONS AND COMMENTS Session 1: The Role and Jurisdiction of the Children's
Commission Powers and Related Issues 21 Safeguarding the powers of the Commission
21 Concerns about funding 22 Credibility issues 23 Extent of the Commission's
Jurisdiction and Responsibilities 23 Broad or narrow focus 23 Emphasis on
all children or more vulnerable children 24 Sources of Advice to the Commission
25 Advisory committee 25 Session 2: Functions of the Children's Commission
Advocacy 26 Systemic or individual 26 Advocacy for young children 26 Funding
for advocacy 27 Policy Development 27 Guardianship 27 Who makes the decisions?
27 Is there conflict with other functions? 28 Alternatives to one guardian
for all children 29 Complaints Handling 29 The General Question of Accessibility
30 Support for a 'one stop shop' 30 Screening and Probity Checking 30 The
Importance of Lobbying Government 31 Forum Summary Gawaine Powell-Davies,
University of New South Wales 32 INTRODUCTION Nigel Spence, Chief Executive
Officer, Association of Children's Welfare Agencies COMPOSITION OF THE FORUM
On 5 March 1998, a forum to discuss the Green Paper, A NSW Children's Commission,
was held at the State Library of New South Wales in Macquarie Street, Sydney.
Organisers of the forum included:
the Association of Children's Welfare
Agencies the New South Wales Children Protection Council the Youth
Action and Policy Association the State Network of Young People in Care.
Approximately 90 organisations sent representatives to the forum, clearly
indicating the strength of interest in the government's proposal to establish
Children's Commission in New South Wales. The range of organisations represented
included the following: local Councils, church groups, peak agencies,
Aboriginal organisations early childhood services, and government and non-government
schools the Department of Community Services, the NSW Police Service,
NSW Health, the Department of School Education, the Ethnic Affairs Commission,
and the Office of Children and Young People a large number of non-government
organisations involved in child and family services, disability services,
youth services, and specialist services for women. AIMS OF THE FORUM The
aims of the forum were: to open up debate on the proposal to establish
a Children's Commission to expose the full range of views within the
many different interested organisations to assist organisations planning
submissions in response to the Green Paper. PART I PRESENTATIONS OVERVIEW
Patrick Parkinson, Associate Professor of Law, University of Sydney BACKGROUND:
The Wood Royal Commission We are at an important juncture in the life of
New South Wales. There is great concern about the care we provide for our
children. The Wood Royal Commission focused particular attention on sexual
abuse but, as everyone in this room knows, there are major problems for
all vulnerable children in this State. While most children are cared for
adequately by parents, schools, the health system and so on, there is a
small core of vulnerable children who do not receive adequate care. This
is the context in which we are focusing our attention on what the core functions
of a Children's Commission should be. In considering the proposals outlined
in the Green Paper, we need first to look at the Wood Royal Commission Report,
released in August 1997. Royal Commissions recognise that they have a limited
time span in which to do their work. They also recognise that, while the
subject they are investigating is the focus of attention for a time, once
a Commission finishes its work this attention tends to recede. Consequently,
Royal Commissions have, over the years, tried to leave behind a structure
to continue the work they have begun. Having clearly identified systemic
failures in the child protection system, the Wood Royal Commission's proposal
for the establishment of a Children's Commission was not a minor recommendation:
it was one of the key elements of the report. The Commission clearly intended
that a permanent body should be established to continue and extend its work,
and that the Children's Commission should be that body. Royal Commission's
Recommendations The Royal Commission's recommendations concerning the role
of a Children's Commission were as follows: A centre for child protection:
The report proposed that the Child Protection Council be reconstituted into
a centre for child protection, with responsibility for education, advocacy,
and systems monitoring, and professional training. This is, in essence,
the sort of work the Council has been doing so successfully over the last
few years. An employment information centre: The report proposed that
the Children's Commission should also be involved in screening and probity
checking of all those employed with children. The proposal for screening
and probity checking goes back to recommendations made in a report on child
care centres issued some years ago by the Child Protection Council. The
idea was subsequently taken up in the Community Services Commission's Who
Cares? report and, finally, given full vent by the Royal Commission Report.
Investigation and review unit: The report proposed that the Children's
Commission should include an investigation and review unit to investigate
complaints and find out where things are going wrong in the system. The
Unit's function would include investigation, complaints handing, review,
and conciliation. Special guardianship role: The report proposed that
the Children's Commissioner should also fulfil the role of Special Guardian
for children in care. This proposal arose out of discussions between the
Royal Commission and the Legislative Review of the Children (Care and Protection)
Act. The Legislative Review clearly identified the need to provide a better
system of substitute care - one which addresses legal rights and responsibilities
and provides a safety net for children. The Legislation Review proposed
that the safety net should be a Children's Guardian holding the legal functions
of parenthood and separate from all those who provide substitute care services.
This proposal was enthusiastically endorsed by the Royal Commission Report,
although the details of how the Children's Commission might fulfil this
role were not clearly spelled out. The Royal Commission worked very hard
to develop its proposed model for a Children's Commission and, in my opinion,
the model deserves to be treated with respect. It has been subject to a
lot of criticism and has, I believe, been discarded far too quickly in the
subsequent debates. PROBLEMS WITH SOME OF THE RECOMMENDATIONS Opposition
to the proposal to disband the Community Services Commission (CSC) The Royal
Commission proposed that the complaints-handling functions of the Community
Service Commission (as far as they relate to children) should be transferred
to the Children's Commission. The Royal Commission also suggested that if
this did not leave enough functions to justify to continuance of the Community
Services Commission as a separate body, its 'residual functions' (principally
those relating to people with a disability) should be transferred to the
Ombudsman. This proposal was opposed by the disability sector. This sector
had been instrumental in having the Community Services Commission established
in the first place and, understandably, did not want its interests to be
regarded as residual functions. The disability sector has a keen interest
in maintaining a well functioning Community Services Commission or its equivalent.
Community support for the Community Services Commission made the Wood Royal
Commission's proposals, as they then stood, difficult to accept. To keep
most of Wood's proposals, the obvious answer was to create a Children's
Commission and a Disability Commission. This was what most of us who were
advocating for the establishment of the Community Services Commission back
in the early 1990s wanted. At that time, however, the idea of two separate
bodies was not acceptable to the government. The compromise was to establish
a conglomerate Community Services Commission which combined the two. Claims
of possible conflict of interest Some have argued that a Children's Commission
as proposed by Wood would create too many different and sometimes conflicting
functions within the same organisation. With respect to those who hold this
position, I believe the arguments are misconceived Complaints handling and
advocacy: The major area of concern about conflicting functions relates
to the proposal that the Children's Commission should combine the functions
of complaints handling and advocacy. Opposition to this combination of functions
has come from those involved in the sort of work done by the Ombudsman.
Their argument is that an Ombudsman, or any equivalent, must be absolutely
neutral. An organisation cannot do this if it has both a complaints handling
and an advocacy role: the culture of the organisation would favour the complainant.
The Community Services Commission has, however, shown that, at least in
relation to complaints handling and systemic advocacy, there is no conflict
of interest; in fact the two go hand in hand. More than that, they need
to be together because unless you know what is happening at the grass roots
level you have no basis for systemic arguments. Individual or systemic advocacy:
It may be difficult to combine individual advocacy and complaints handling
functions, but this does not apply to systemic advocacy. The question to
be addressed is whether a Children's Commission should be running an advocacy
network or advocating for individual children. My personal view is that
individual advocacy should be provided locally, where children live, rather
than by some government organisation. Complaints handling and guardianship:
The argument here is that, if the Children's Commissioner is also the Children's
Guardian, children will have no one to complain to if they do not agree
with the guardian's decisions. The answer is that the Children's Guardian
would not have a complaints handling mechanism; instead the decision could
be appealed in the courts. The Children's Guardian has the legal functions
of parenthood. To challenge a legal decision, you use a legal forum. From
a legal point of view, this is fundamental. I do not believe that the problems
and conflicts arising from the Wood Report are as serious as the Green Paper
suggests. I can see some problems but believe that these have been grossly
overstated. In particular, the two problems referred to above have led to
the almost abandonment of the Wood proposals. THE HEART OF THE MATTER The
following are, I believe, the two main reasons why Wood's proposal for the
establishment of a Children's Commission has had such resonance in the community
and has generated such support. The community felt that the Royal Commission
had successfully put the spotlight on government, on churches, on schools,
on all the different aspects of children's lives, and that some organisation
should be responsible for continuing this work. People responded very warmly
to the idea of a 'one stop shop' to which children, parents, youth advocates,
youth workers, teachers, ministers of religion - in fact everybody - could
have easy access. You all know that if your car breaks down, you can ring
the NRMA. You may even know the number off by heart. It would be no use
having to ring one number for a starting problem, another for electrical
faults, another for radiator problems, another for carburettor problems,
and so on. The point is that, although the problem may be immediately obvious
to an NRMA mechanic, often it is not obvious to the car owner. This is the
heart of the 'one stop shop' concept. Those of us who work closely with
government or in government know the different lines of demarcation between
government organisations and agencies. Those who have little or no contact
with State government services won't know whom to contact. The 'one stop
shop' provides at least a front agency people can ring and say, "I
have a problem. What do I do about it?" For many people in the community,
distinctions between Federal and State responsibility are also very confusing.
A good front agency or 'one stop shop' could refer to Federal as well as
State government agencies. Essential components of an effective Children's
Commission 1. A clear purpose: To be listened to within government, a Children's
Commission must have a clear purpose. It is not enough to say that the Commission
should deal with all children's issues in New South Wales; it must have
some sort of focus and clearly defined role. 2. A critical mass and substantial
functions: A Children's Commission must not be a body to which no-one listens
and which produces more and more reports which no-one reads. It needs to
have functions which give it importance within the system as a whole. If
we end up with the Children's Commission which is a couple of people in
suits in an office somewhere in Parramatta publishing discussion papers
and reports, we will have an expensive lame duck. 3. A voice within government:
The Children's Commission must have a voice within government. Governments
tend to work in secrecy. This is entirely valid in terms of their need to
control the political debate, but the Children's Commissioner must be heard
before matters get to Cabinet, not after the press release has been issued.
In other words, the Children's Commission should not have to lobby from
the back row. It needs to be in the forefront of the debate. 4. Credibility
within the community: The success of a Children's Commission will depend
as much on our good will and support as on government funding. Unless we
believe in and support the organisation, we will not be prepared to join
its committees and respond to its requests. The Commission must, therefore,
be based on a model which has credibility with both the professional and
general community. 5. Accessibility to children and young people: A core
function of the Commission must be to encourage the participation of children
and young people. The Commission will only fulfil this function if it has
contact with children and young people at the point of their need. It must
not been seen to be an organisation run by an old man in a suit, or even
a middle aged man or a middle aged woman. 6. Accessibility to the public:
The Commission must also be accessible to the public. To respond to grass-root
problems, it must be accessible to the grass roots. 7. Protection of vulnerable
children: Even if the Children's Commission's brief covers all children,
the Commission must still have a particular focus on vulnerable children.
These are the children who most need a Children's Commission: the kids in
care, the kids at risk of abuse and neglect, the kids who are working night
upon night at sewing machines, making clothing because their mother has
a contract with the clothing company. We need to define 'vulnerable children'
more broadly since currently not all vulnerable children are covered by
existing networks or definitions of child abuse and neglect. SOME MODELS
FOR A CHILDREN'S COMMISSION Judy Cashmore, Chairperson, NSW Child Protection
Council There are many possible models for a Children's Commission. The
different bodies already in existence around the world have a variety of
names, scope, and functions. The following is an outline of the range of
functions performed by some of the Children's Commissions or equivalent
bodies already in existence both here and overseas. The aim is to give you
an idea of the variety of models available, not to tell you which model
to choose. Focus The first question about a Children's Commission is what
its focus should be. Should the Commission focus on all children in a general
way or have a particular focus on vulnerable children? Some local and overseas
models Norway: In Norway, the focus is on promoting the interests of children
'vis a vis public and private authorities'. This focus is defined in legislation.
Sweden: In Sweden the focus is on safeguarding the rights and interests
of children and young people as laid out in the UN Convention on the Rights
of Children (UNCROC). Sweden is the only place I found any reference to
UNCROC. New Zealand: Here, the Children's Commission has both a broad and
a more specific focus, It is required to promote the welfare of children
and young people and to oversee the Children and Young Persons and Their
Families Act (1989). Queensland: The Queensland Commission focuses on complaints
about children's services and investigations of abuse. It also focuses on
complaints about the delivery of children's services within various organisations
and institutions. There is no mention of children's rights or best interests.
Given the current situation in New South Wales, it is particularly important
for us to understand how the context in which the Queensland Commission
was established has influenced the focus of the organisation. The background
to the establishment of the Queensland Commission was a real concern about
paedophilia. In fact the Commission's first report was about paedophilia.
This explains the focus on complaints and the investigation of abuse. Tasmania:
The focus is on 'the health, welfare, care, protection and development of
children'. Once again, there is no mention of children's rights or best
interests. In England, a book by Rosenbaum and Newell (1991) provides a
framework for a Children's Commission and a good analysis of the issues.
Prevention In overseas models, the prevention focus tends to be included
in the context of promoting children's interests. The prevention element
is harder to find in the Australian and New Zealand models. Functions Monitoring
In the Green Paper, monitoring is discussed chiefly in the context of investigation
and review. Monitoring can, however, have a number of different meanings
and applications. It is necessary to analyse these separately to understand
how they might fit with the functions of a Children's Commission. Monitoring
and promoting the wellbeing of children: This type of monitoring needs to
be clearly distinguished from monitoring implementation and compliance (see
below). Monitoring and promoting the wellbeing of children are functions
of the Children's Commission or equivalent in Norway, Sweden, New Zealand,
Tasmania and Queensland. These functions are much more clearly identified
in some models than in others. Monitoring implementation and compliance:
This is the type of function which could be performed within government
by a body such as the Office of Children and Young People. The OCYP could,
for example, monitor whether departments and agencies were actually doing
what they said they would do and whether their actions were in line with
government policy. Monitoring compliance with UN Convention on the Rights
of the Child: As already indicated, compliance monitoring in terms of the
UN Convention of the Rights of the Child is a bit thin on the ground. It
is clearly spelled out in Sweden; it exists in Norway and in England; elsewhere,
it does not rate a mention. Because Norway and Sweden have specific budgetary
allocations for the whole children's area, it is relatively easy to monitor
what is spent on children in both these countries. It is very hard to do
this anywhere in Australia, either in the states or federally. Monitoring/review
of the operation of child welfare legislation and practice: The other aspect
of monitoring is to review the operation of child welfare legislation and
practice. This is clearly identified as a function of the Children's Commissions
in New Zealand and Tasmania. In this respect, the Tasmanian legislation
largely follows that of New Zealand. The legislation even has the same name.
Although it was passed at the end of 1997, the Tasmanian legislation has
not yet been proclaimed, so it is still not clear what the impact will be
in practice. Monitoring the delivery of services to children: This can refer
to monitoring in general or monitoring more specifically in relation to
compliance with the relevant legislation. In Norway and Sweden, monitoring
is general. In New Zealand, Queensland and Tasmania, monitoring is specific
to compliance. Investigating complaints The Royal Commission envisaged a
Children's Commission whose investigation and review functions would encompass
dealing with both individual and systemic issues and complaints. The Green
Paper argues that giving the Children's Commission responsibility for both
complaints handling and advocacy on behalf of children would create a conflict
of interest. I agree with the response to this argument put forward by the
previous speaker, Patrick Parkinson. If the Commission's advocacy role is
principally systemic rather than individual, there is no conflict between
systemic advocacy and complaints handling; in fact the two are complementary.
In Sweden and Norway, Childrens Ombudsmen do quite a lot of work on individual
complaints. In Sweden, they use an individual complaint as the starting
point for looking at systemic issues and at compliance with the UN Convention
on the Rights of the Child. In New Zealand, the role of the Commission is
"to inquire into and report on any matter". I understand that
the New Zealand Commissioner interpreted that fairly broadly in a number
of cases. In Queensland, the Children's Commission is very much involved
in investigations and complaints handling in relation to individual cases
involving abuse or the delivery of services to children. In Tasmania the
legislation authorises the Commission "to investigate a decision, recommendation
or act which is done or omitted under the Act other than in the court".
The problem, however, is that the Commission can do this only on the request
of the Minister. This raises the issue of what powers a Children's Commission
has (see below). A 'one stop shop': One of the options put forward in the
Green Paper is to locate this function within the Ombudsman's office. Another
option would be to locate it within the Children's Commission, with links
to a Kids Helpline. This would not mean that the Commission would handle
individual complaints but rather that it would act as a referral service,
helping people to understand the system and know where to go for help, advice
and information. There would be advantages in locating such a function within
the Children's Commission. At the moment, people who have complaints may
not always know where to take their complaints. Where, for example, do people
with multi-jurisdictional complaints go? Where would you take a complaint
about agencies not working together in relation to a child abuse case? The
Green Paper points out that a complaint about a child protection Joint Investigation
Team would currently have to be handled by both the Ombudsman and the Community
Services Commission (CSC) because it involves both Police and DCS. The Green
Paper goes on from this to argue that the process would be streamlined by
giving the Ombudsman oversight of the operations of the CSC. Another advantage
of making the Children's Commission a 'one stop shop' for complaints is
that the Commission would then be able to monitor all in-coming complaints
and identify gaps in the complaints-handling system (ie identify cases where
people do not currently have anywhere to go to complain). It would also
inform the Commissions research and systemic advocacy functions. Another
option would be to allow the Childrens Commission to take up individual
complaints on its own initiative where there are no existing bodies to handle
that complaint or where it raises specific issues (compared with Sweden).
The problem is that there is currently no complaints-handling body covering
the education area. To allow anyone with an education-related complaint
to take that complaint to the Children's Commission, might result in the
Commission's being swamped with expulsion/suspension-type complaints. These
could absorb the bulk of the Commission's resources and possibly subvert
its other functions. Monitoring complaints made to other bodies: The complaints-handling
issue again raises the question of whether the Commission's primary concern
should be with systemic or individual issues and complaints. We do not currently
have any real, systemic complaints processes which provide an overview of
what is happening to children. One way to address this would be for the
Children's Commission to monitor both the complaints made to other bodies
and the complaints-handling procedures other bodies use. Under this arrangement,
a body such as, say, the Health Care Complaints Commission could be required
to report to the Children's Commission identifying complaints received in
relation to children and detailing how these complaints had been dealt with.
This would provide the Children's Commission with an overview of the situation
and allow it to identify systemic complaints handling issues and problems.
Advocacy Advocacy is another key function of many Children's Commission
type bodies. The need for advocacy for children is well established. The
Legislative Council's Standing Committee on Social Issues Report on Children's
Advocacy did a thorough job of investigating and reporting on this issue.
Systemic advocacy: This is a core function of Children's Commissions almost
everywhere. In Sweden and Norway, systemic advocacy involves identifying
where legal or policy and practice reforms are required and recommending
the necessary changes. Systemic advocacy also involves promoting the participation
of children and young people. We have not done very well in this area yet.
The other important aspect of systemic advocacy is setting standards and
promoting best practice, and carrying out research and other investigations
to inform that process. A coordinating function and an overview of what
is happening in the overall system, are other important aspects of systemic
advocacy. It is important to know how systems are working together, where
the gaps are, and where kids are falling through those gaps. Individual
advocacy: In terms of individual advocacy, the Standing Committees report
on child advocacy recommended the establishment of a statewide network of
20 advocates. The report also put forward the idea of peer advocacy. This
is a topic to which we all need to give more thought. Training and community
education While one of the significant roles of the Child Protection Council
has been in core training and interagency training, especially in the implementation
of the Interagency Guidelines for Child Protection Intervention, direct
service delivery is not a major function of the other bodies. One possibility
for the new Childrens Commission, however, is that it should have a monitoring
function in relation to training in a similar way to the current role of
the Child Protection Council in conducting a strategic review of training
in child protection across the state. Public awareness and community education
is a common function of bodies such as Childrens Commissions elsewhere.
This is indeed a major function of the Childrens Ombudsman in Norway and
Sweden especially in relation to the UN Convention on the Rights of the
Child in Sweden. The Childrens Ombudsman in Norway also played a significant
role in public education in relation to the change of the law banning the
physical punishment of children. The Australian and New Zealand bodies also
include community education as an important function. Once again, this is
an area in which research would be expected to play a role in identifying
issues and examining the effects of any community awareness programs. Special
guardianship for children in care The Green Paper refers to the Legislative
Review Report and the discussion of the role of a Special Guardian for Children
outlined there. That report is not yet publicly available. [UPDATE: The
report was released by the Minister on 18 March 1998.] The main issues here
are what role should the Childrens Guardian play in relation to children
in care, and relation to the devolution of parenting responsibilities to
those directly caring for the child. The main problem with the current system,
largely a result of the Boards of Review in the current Children (Care and
Protection) Act 1987 not being proclaimed, is the lack of proper review
processes for children in care. Screening and recruitment review - probity
These functions, as recommended by the Wood Royal Commission, are not part
of similar bodies elsewhere. They involve more of a policing function, with
different skills and structure which do not fit well with the other functions
of a Childrens Commission. This does not mean, however, that the Commission
could not take a higher order function in reviewing the processes that are
set up to do it. There is currently a task force within Premiers looking
at these issues. POWERS The Green Paper acknowledges the importance of having
a Commission which is an independent statutory body. Independence alone
is not, however, enough. To be effective, a Children's Commission must also
have adequate powers. In New Zealand the legislation governing the Children's
Commission refers to "all such powers as are reasonably necessary or
expedient to enable the Commissioner to carry out functions." The following
are some more specific examples of powers Power to seek outside advice and
information: To be effective, a Children's Commission needs to have the
power to seek outside advice and information. This means having the power
to gain access to information, files, and records, as required. This is
not mentioned in the Green Paper, but the Commission will be a very weak
body if it does not have these powers. The power to initiate inquiries and
set its own work plan: Both the Tasmanian and the New Zealand models have
real problems with this. The Tasmanian Commission has a number of functions
it can do only on the request of the Minister. In New Zealand, the Commission's
whole work plan has to be submitted to the Minister for approval and funding
before it goes to Parliament. This guarantees that somebody else has a say
in the way things work. In the newsletter he wrote before he died earlier
this year, the last New Zealand Commissioner clearly identified the problems
stemming from this lack of independence. Power to be consulted about legislative
change affecting children: A number of the organisations examined have this
power. This does not mean the government has to implement or go along with
the recommendations made by the Commission but that the Commission must
be consulted. In some cases, the Commission must be given the opportunity
to comment on legislation. Privilege: This relates to the status of information
given to the Commissioner and whether the Commissioner may be called before
a court to give evidence on information received. In a number of organisations
studied, the Commissioner cannot be called to give evidence. ACCOUNTABILITY
The issues here are: To whom should the Children's Commission report?
What should be the status of the Commission's recommendations? In Tasmania
and New Zealand, the Commission reports to the Minister. The New Zealand
Commissioner has documented the problems associated with this situation.
How the Tasmanian model will work in terms of accountability is not yet
clear. In Queensland, the Commission is not subject to control or direction
by a Minister or Department. In spite of the apparent advantages of this
situation, concerns have been expressed because the Commissioner was a political
appointment. In other words, in spite of the powers, the candidate in this
case has not lived up to people's expectations. Clearly, the calibre and
credibility of the person appointed as Commissioner is very important. In
Norway and England, the Commission reports to Parliament. The Green Paper
suggests that the Commission should report to Parliament and that accountability
may be enhanced if it also reports to a Joint Parliamentary Committee. SOURCES
OF ADVICE From whom should a Children's Commission take advice? In response
to the Wood Royal Commission's recommendation concerning the establishment
of an Advisory Committee to provide formal advice to the Children's Commission,
the Green Paper argues that there are disadvantages in having a single Advisory
Committee. The Green Paper recommends that, instead, the Commission should
have the general power to seek advice as required. It does not, however,
mention the need for external advice. In some of the models studied, where
the Commission obtains advice is left to the discretion of the Commissioner.
In others, there is a Council or other advisory body appointed by the Minister
or the government. In South Australia, the appointed advisory body is the
Children's Interest Bureau. This body was formerly more independent than
it is now, since it was subsumed within the S.A. Office of Families and
Children. In Tasmania the Commission is required to appoint a Children's
and Young People's Consultative Council and a Children's and Young People's
Advisory Council. We do not yet know who will be on these advisory bodies,
what their qualifications will be, whether they will be government or non-government
representatives, and whether they will include young people. Other key issues
to be considered in relation to sources of advice for the Children's Commission
are as follows: Participation of children and young people: How do you ensure
that young people are part of the process? How can the Children's Commission
be made relevant and accessible to children and young people? Participation
of non-government agencies: In spite of some of the problems the current
NSW Child Protection Council has, it does include both government and non-government
representatives. I believe this is a significant strength and one we do
not want to lose. Role of Area Child Protection Committees: The Commission
will not be effective if it is divorced from the field, if it does not have
links with those working at the grass roots level. How the Commission should
maintain links with the field is an important issue for discussion. YOUNG
PEOPLE'S PERSPECTIVES Members of the State Network of Young People in Care
(SNYPIC) Andrew O'Brien I am Andrew O'Brien and I work for the State Network
of Young People in Care. Vanessa Francis who will speak after me is one
of the young people involved in the organisation. As there are representatives
here from organisations from outside the child welfare sector, I will first
explain briefly what SNYPIC does. Then I will outline some of the issues
which need to be addressed to make the proposed Children's Commission acceptable
to children and young people. What Does SNYPIC Do? SNYPIC is basically a
consumer movement. The organisation is run wholly by people who are or have
been in the care system. SNYPIC's two main areas of work are: to provide
a link with young people to provide peer support, advocacy and skills
development. Peer support and individual advocacy: As part of our peer support
and advocacy role we actively go out to where young people are in their
situations in care. We organise get-togethers so that they can talk about
issues of concern to them, such as what it's like being in care, and come
up with some suggestions about changes to make things better in the future.
We also give young people some skills to help then have a say and access
any system. Systemic advocacy: Advocacy from the individual's point of view
leads to advocacy at a systems level. From being involved in individual
advocacy, we find out what the issues are for children and young people
in care across the State and then lobby government to make changes. Over
the past few years, SNYPIC has ensured that the views of young people in
care have been brought to bear on the development of some government policies,
and on other areas of work such as the Legislation Review. Some Views on
the Proposed Children's Commission Much of the debate so far has centred
on different structures and models for a Children's Commission. We in SNYPIC
consider that it is more important to look first at what functions the Children's
Commission should have, and then look at the structures needed to carry
out those functions. Accessibility to young people In my view, access for
children and young people is closely linked to accountability. The Children's
Commission must be both accessible and accountable primarily to children
and young people. In looking at access for children and young people it
is important to remember that access is a two way street. It is not enough
to expect children and young people to ring a telephone number. It's much
easier for a child or a young person to think about a person rather than
a piece of paper with a telephone number. The Children's Commission will
also have to get out into the community so that children and young people
know of its existence and also know how to access this 'one stop shop'.
This community outreach will help to create an image of a Children's Commission
which is readily accessible to young people. The Children's Commission should
also be involved in empowering young people. No matter how user-friendly
organisations think they are, they are not effective unless they are accessible
to children. So giving young people the skills to access any system must
be one of the key roles of the Children's Commission. The Children's Commission
should model best practice in terms of access. Funding and resources For
the Children's Commission to be accessible to children and young people
as well as the community at large, a large amount of systems and resources
will be needed. SNYPIC does not endorse the models put forward to fund the
Children's Commission. If the government is sincere in wanting to bring
a special focus on children's issues through the Children's Commission,
more than a reshuffle of existing government resources is needed. New funds
are needed to bring about effective change and high accessibility. SNYPIC
is concerned about the proposal to move resources from the Community Services
Commission to the Children's Commission. We fear that this will result in
the loss of a special focus on children in care. Monitoring and complaints
handling The Commission should be open and transparent in all its functions.
It could act as a watchdog for other complaints bodies as well as services
which work with children and young people. The Commission could monitor
services and organisations to ensure that they have systems which are young
people friendly. Participation by young people There has been a lot of discussion
about having an Article 12 committee as well as input from the Youth Advisory
Council. SNYPIC supports these measures, but believes they are not the only
way for children and young people can participate. It is not enough just
to put a young person on a committee. The Commission will also need to develop
strategies for supporting and skilling young people to have their voices
heard and to reach out to other young people. It is not fair to set up a
traditional model which is adult dominated and then ask young people to
fine tune the system and make it more accessible. Children and young people
need to be involved in the development of the organisation from the very
beginning. The Child Protection Council's recent study, Having a Say, highlights
the importance of this involvement. The study involved a lot of consultation
with services and with children and young people about how user-friendly
they thought the services were. The report, which is soon to be released,
found that, although the services surveyed considered themselves to be very
open and accessible to children, the children surveyed did not agree. Finally,
the establishment of a Children's Commission is about creating a balance.
It's not about pushing children's and young people's rights at the expense
of other people's rights. It's about creating a fair and open system which
will allow the most marginalised section of our community - children - to
have a say in processes and decisions which affect their lives. Vanessa
Francis Good morning everyone. I am Vanessa Francis. I am 14 years old and
I am in care. I've been involved with SNYPIC for around 6 months and have
learnt a lot about issues for young people in care. I have also gained skills
and learnt how to advocate better for what I want. I am here this morning
to offer some ideas about a Children's Commission for New South Wales from
the point of view of a young person in care. There has been a lot of talk
about a Children's Commission and what it should do. Most of the talk seems
to have been by adults. I believe the talk should come from both young people
and adults, and that adults should be supporting and encouraging young people
to give their ideas. I will do now give you my views and the views of other
young people in care about the Children's Commission. Making the commission
accessible What should the Commission look like?: The image which springs
to mind when I think about the Children's Commission is that it must be
young person friendly. After all, it is meant to be working for children,
so it must have a youthful image. This means that it should not look like
a government office. It should be open and inviting with bright colours
and an area where lots of information is easily accessible to children and
young people. Also, the Commissioner should be someone children and young
people can relate to, not some old guy in a suit. Where should the Commission
be located?: The Children's Commission should be in a place easy to get
to, near public transport, preferably Parramatta, and not in an office tower.
Community outreach: It is important that the Children's Commission be part
of the community so that it is easily accessible to people generally and
especially children. Other ways in which children can access the Commission
is by phone, fax, and the Internet. Most schools now have the Internet access
so they should be getting young people to go onto the Internet and find
out about it. One of the best ways to let young people know about the Children's
Commission would be to have a team of people travelling across the state
visiting schools, youth centres and places which care for children and young
people. It is not enough to have posters and brochures and even videos letting
people know about the Commission. It is easier to relate to people than
to a piece of paper. This reaching out to children needs to happen all the
time, not just once. The more the Children's Commission staff are out there
in contact with children and young people, the easier it will be for them
to find out what the issues of concern to children and young are. Functions
the Commission should have: As well as letting people know about the Children's
Commission and visiting services, there are a few other functions which
I see as being really important. Complaints handling: The Children's Commission
should be a referral and support service for children and young people who
want to complain about government and non-government services. There are
bodies already set up to hear complaints. The problem is most young people
don't know they exist. If they do know about the existence of the complaints
bodies, they don't know how to complain or which one to complain to. The
Children's Commission should bring all the information and systems together
so that children and young people can contact one person or body. The Children's
Commission should also put out a Bill of Rights to let everyone, children,
young people and services, know what our rights are. Advocacy: To better
help children and young people with their complaints, the Children's Commission
should have a team of advocates who will support young people and pass on
their knowledge and skills. These advocates should be constantly moving
around the State, visiting services and young people to let them know what
the Children's Commission does. Focus on vulnerable children: The Children's
Commission should have a special focus on those children and young people
who are most disadvantaged. To me, this means children and young people
in care. Guardianship: It would be great to have the Children's Commission
as my guardian rather than the Minister for Community Services because the
Children's Commission will look out for me only. I say this because I recently
had an experience where DOCS, as my guardian, thought about what was good
for it rather than what was good for me. I was asked to be in a video talking
about what it's like to be in care. I wanted to do the video but was told
by DOCS that I couldn't. This cheesed me off but I accepted what they said.
A few days later I let my DO know that I was going to meet the Minister
who is my guardian. My DO told me that it might not be good for me to meet
the Minister as the meeting was for those over 16. This was not true and,
anyway, why can't I meet my guardian. I ended up going. At the end of the
lunch, a group photo was to be taken of the Minister with the young people.
At this point, a DOCS worker pulled me aside and said that I couldn't be
in the photo with my guardian. I think that DOCS were trying to protect
themselves rather than supporting me, which is what a guardian should do.
This is why the Children's Commission should be the guardian for those in
care rather than DOCS. Screening and probity checking: The Children's Commission
should also have assistance to do checks on anyone who works with children
and young people. This will help to stop the wrong sort of people getting
jobs where they might be able to abuse children and young people. Monitoring
and reviewing legislation: Another function the Children's Commission should
have is to go over any laws to make sure that they protect children and
young people. The Children's Commission should be involved whenever laws
are being made or changed, and be able to comment on the laws and say what
is good or bad about them. Obtaining input and advice from children The
Children's Commission must always seek the views of children and young people
on what it is doing. For this to happen, the Children's Commission must
support and skill young people to give advice, rather than just setting
up a young person's committee. A committee is only one way for children
and young people to advise the Children's Commission. There are lots of
other ways. What is needed is for young people to work in the Children's
Commission where they can get the necessary skills and be able to pass these
skills on to other young people. Finally, I would like to thank the organisers
for giving me the opportunity to speak and I would like to thank you all
for listening. I will end by challenging each of you to help children and
young people you work with to give their views on something really important.
Thank you. PART 2 - DISCUSSION SESSIONS, QUESTIONS AND COMMENTS In two discussion
sessions participants addressed issues raised both in Part 1 and in the
Green Paper in relation to the role, jurisdiction, and functions of the
Children's Commission. The following is a summary of these discussion sessions,
and of the various questions and comments made throughout the forum. The
material is not presented in the order in which it arose during the forum.
Instead it is presented as far as possible in the context of the Green Paper
and in the order in which issues were addressed in that document. Forum
participants are identified only as 'PARTICIPANT'. Forum organisers/presenters
are identified by their initials. NS = Nigel Spence PP = Patrick Parkinson
JC = Judy Cashmore DISCUSSION SESSION 1 ROLE AND JURISDICTION OF THE CHILDREN'S
COMMISSION INTRODUCTION The first discussion session addressed issues related
to the role and jurisdiction of the Children's Commission, in particular:
1. the Commission's powers 2. the scope and extent of its jurisdiction and
responsibilities 3. from whom the Commission should seek/obtain advice.
During this discussion, participants also raised a number of issues which
were not specifically addressed in the Green Paper. These issues, which
are relevant to the role and jurisdiction of the Children's Commission in
that they will help to determine its effectiveness, were as follows: Survival
of the Children's Commission: The need to build a culture of support for
the Children's Commission so that its existence is not threatened or its
powers diminished by inadequate funding or exclusion from key decision-making
processes. Credibility of the Children's Commission: The crucial importance
of the image the Commission conveys to children and young people as well
as to government and the general and professional community. Discussion
centred on how the Commission might gain and retain the confidence of children
and young people, the government and non-government sector, and the wider
community. Powers AND RELATED ISSUES PARTICIPANT: The issue of powers is
really important. The Royal Commission talked about a supervisory agency,
an organisation which could really come to grips with the problems. Clearly,
the Royal Commission envisaged a body which has the power to intervene and
get things done, such as when interagency cooperation is not working. The
disappointing thing about the Green Paper is that it tends to talk about
a by-standing agency - one which can watch and comment but not necessarily
do much The Office of Children and Young People (OCYP) has the necessary
authority in relation to government agencies but OCYP is not publicly accountable;
that's not its role. The Children's Commission needs to have the power to
go public in a way that the OCYP can't. On the other hand, the OCYP has
greater access to the centre of government than you would expect the Children's
Commission to have, Logically, the two bodies have the potential to work
together very well. Safeguarding the powers of the Commission PARTICIPANT:
Some very good institutions which have been set up to safeguard areas of
public interest and concern have subsequently been dismantled or had their
powers taken away. Would the fact that the Children's Commission was a statutory
body safeguard it to some extent and prevent its being dismantled by a Minister
or government? PP: Something which is established in legislation can only
be disestablished by the repeal of that legislation. So in that sense legislation
does give some protection because it is passed by Parliament and has to
be repealed by Parliament. So it is a very public process. The point you
have made, that Commissions have generally not fared very well in the past,
is a serious one. As soon as Commissions put the spotlight on Government,
particularly on failures within the system, they tend to draw the wrath
of the government of the day. My view is that we need to encourage a change
of culture within government so that the work of Commissions which protect
the vulnerable is welcomed. The spotlight Commissions put on government
is an important part of a democratic society. We should all come to the
defence of Commissions when they are 'knee-capped' for doing their work.
JC: Commissions can also be 'knee-capped' by funding cuts, denial of access
to government, or having their recommendations ignored; in effect being
sent to Coventry. The sort of change of culture Patrick Parkinson spoke
about is really evident in Norway. When a Children's Ombudsman was established
there in 1981, it had a very slim margin of support. Now it has something
like 85 per cent approval, according to a population survey. The stand that
the first Ombudsman in Norway took developed such a public profile for the
organisation that it would now be difficult for them to get rid of it. This
indicates that change can happen but that it does not happen quickly. PARTICIPANT:
How can we ensure that a Children's Commission will have the power to conduct
enquiries without being constantly under threat? PP: Throughout government
and non-government organisations there is a general concern for the wellbeing
of children. The Commission needs to build on this concern and work in partnership
with other organisations to achieve change. Rather than seeing itself as
a watchdog, and as having to take an oppositional stance, the Commission
needs to adopt a proactive approach. This may be one argument for not having
complaints handling as a major part of a Children's Commission's work. If
the Commission has a major role in handling complaints, it will at times
be required to identify the failings of a particular Department or Minister.
Some of this confrontation could be avoided if the Children's Commission
has a more proactive role. JC: Coming back to the issue of cultural change,
it may be useful to look at how Norway managed this so effectively. Norway
went from being a society which was fairly supportive of physical punishment
of children to one which is now strongly opposed. The Children's Ombudsman
brought in the relevant legislation in stages and, through public education,
skilfully promoted increased awareness of the issues and attitudinal change.
It is really important to raise community awareness of the importance of
children and generate community support for a Children's Commission. If
the Commission has wide community support and is seen to be doing an effective
job, it will be much more difficult to abolish or overlook. Concerns about
funding PARTICIPANT: As I work for a non-government organisation, my big
concern is funding. I note that page 7 of the Green Paper says that to maximise
effectiveness and avoid overlaps and duplication, the establishment of the
Children's Commission may involve reallocating functions and resources from
existing agencies. What does this mean? JC: NCOSS and other bodies have
looked at the projected funding needs of a Children's Commission. Under
the Royal Commission's proposals, presumably the Children's Commission would
take over the funding currently allocated for the Child Protection Council's
function and for any Community Services Commission functions which may be
transferred to the new body. This funding would not, however, be enough
to cover the broader range of functions which will be required of the Children's
Commission. The NSW Child Protection Council would be concerned if the Children's
Commission were expected to broaden its focus but without any increased
funding. If this happened, the funding for child protection would be diluted
and we would, in that area at least, be going backwards. PARTICIPANT: Funding
for the establishment and functioning of the Children's Commission is not
the only funding issue. There is also a need for increased funding for service-delivery
in the field. PP: The cost of a Children's Commission will be a drop in
the ocean compared to the total cost of welfare services which we all know
are over stretched. Basically, we need to claim a greater slice of the pie
for children. To do that, children need a political voice. Children's issues
must be visible in the media. We must make sure that children, particularly
vulnerable children, are on the political map. Services need to be able
to show that the money is being used widely. To do this, they need to focus
on key areas of need and clearly identify their goals. Credibility issues
Credibility with young people PARTICIPANT: I presume the name, Children's
Commission, comes from the Royal Commission's report. This title may seem
a bit patronising to older children and adolescents. A better name might
be Children and Young People's Commission JC: I agree about the name. There
is no reason why it should be restricted to children. In Tasmania and New
Zealand, rather cumbersome names such as Children, Young People and Their
Families, or Young Persons and Their Families, have been chosen. Perhaps
we could be a bit more creative in our approach and seek suggestions, especially
from young people themselves. The State Network of Young People in Care
(SNYPIC) has some very creative ideas. Perhaps we could ask them and other
young people to help. Given that the Commission is intended to serve children
and young people's interests, it would be appropriate to involve them in
its naming. A guiding philosophy PARTICIPANT: I was glad to see a lot of
emphasis on prevention in the presentations at the start of this forum.
It is important for the Commission (whatever it is called) to focus on prevention,
and not just what I call healing. Also, functions such as public education
and advocacy are very important because they reflect an ongoing vision of
the role of the Commission. I would not like to see a Commission which is
just a pragmatic, reactive body. I hope we will have a Commission which
is underpinned by a stated philosophy such as that contained in the UN Convention
on the Rights of the Child. I know words don't mean everything, but they
do provide a focus from which action can flow. EXTENT OF THE COMMISSION'S
JURISDICTION AND RESPONSIBILITIES Broad or narrow focus PARTICIPANT: I am
interested in the need for the Commission to have an effective political
voice and to be involved in raising community awareness and promoting a
culture of change. To do this, it must have a broad focus. I am a little
concerned that this will not be possible if the focus is too narrow. I realise
that we must protect more vulnerable children but feel that we need a broader
approach if we are going to change the culture. I am wondering whether,
if had Norway started with a narrow focus, it would have achieved the wide
acceptance it now enjoys and which makes it such a secure structure. JC:
That is a good point. A Commission which has broad responsibility for issues
of concern to all children and families may receive more political and public
support than a Commission which focuses just on child protection issues.
In Queensland, where the Commission was established as a result of concerns
about paedophilia, child protection issues are its main focus. Because of
the immediate background to the proposal to establish a Children's Commission
in New South Wales (ie the Royal Commission) this is a factor we need to
be particularly aware of. PARTICIPANT: The issue of focus is also important
in avoiding duplication and fragmentation. We need to look at a child in
the context of the whole environment in which he or she lives and in terms
of the whole system whether it is the welfare system, the education system,
or the overall situation of the family in relation to housing, employment,
etc. Also, we already have the Ombudsman, the ICAC, etc. If we continually
fragment and add on new bodies, we never tackle the big picture - the systemic
issues. PP: Concerns about fragmentation are very real and very important.
One of the things the Royal Commission was aiming to do was to overcome
fragmentation by having a Children's Commission which crosses all the boundaries.
In the debate which has followed within government and elsewhere, this idea
has been lost and we are back to the idea that complaints bodies could handle
different aspects. We need to get back to the fundamental need for an all
of government approach. We need to be promoting a system which will range
across both government departments and non-government agencies. The Children's
Commission has the potential to achieve this if given a chance to work.
PARTICIPANT: I am also concerned about this question of fragmentation and
specialisation, or generalisation and specialisation. The models we have
looked at today offer a good opportunity to find a solution to this question.
The great thing about having a generic organisation (the 'one stop shop'
idea) is that it will pick up kids wherever they have problems. It will
not compartmentalise them on the basis of education or health or their contact
with the Police and the court system, etc. It will understand each child
as a whole person and be able to follow children anywhere in the system.
The problem, of course, is that a generic organisation may not then have
the necessary specialised expertise to come to grips with problems in any
one area. Adults can go to the Health Care Complaints Commission when they
have a problem about a doctor; they don't have to go to a generalist body.
As someone has already pointed out in relation to the NRMA analogy used
by Patrick Parkinson, a generalist picks up the problem, but if the car
needs real surgery it goes to a specialist. This may be a brakes specialist,
or a gear box specialist, or at least a mechanic who specialises in that
brand of car. In other words, there is a need for the specialisation as
well as the generalisation. If a Children's Commission can follow children
wherever they are, monitor the services (both government and non-government)
provided to them, and intervene when those services aren't working (not
only direct services but also complaints services), then it will be a pretty
good model. Emphasis on all children or more vulnerable children PARTICIPANT:
Whether the Children's Commission's focus encompasses all children or children
who are especially vulnerable, it will need special expertise at a senior
level. Children with disabilities, who form one of the most vulnerable groups,
tend to miss out on even the most minimal and adequate care and protection
functions which currently exist for all other children. We in the disability
community are very keen to see that children with disabilities are included
under the mainstream functions of the Children's Commission. The Commission
will, however, need to have special expertise at senior levels to ensure
that it is able adequately to protect the interests of children with disabilities
within its mainstream functions as they develop. JC: In child protection
terms, some work has been done on developing a framework for preventative
programs and services, but we need to do more research on the problems of
specific groups. NS: ACWA has developed the view that the Children's Commission
should be able to range across all children in all areas of the State but
that the concern the Royal Commission had for vulnerable groups should also
be preserved. We are particularly concerned about the need to advocate for
children who, for whatever reason, do not have effective parent advocates.
Whether the framework or legislation for establishing the Commission needs
to name particular groups is, however, debatable. PARTICIPANT: It makes
me nervous to hear you talk about defining vulnerable children as those
who do not have adequate parental advocacy. Lots of vulnerable children
have good parent advocates but the best interests of the children may not
necessarily coincide with those of their parents. We have not adequately
addressed the issue of how you define vulnerable groups. If they are defined
as those who do not have adequate parental advocates, we would be back to
idea of 'child at risk' which would be a real worry for me. NS: I agree
that there are some problems with that definition of vulnerability. My intention
was to suggest the need to establish priorities so that the Children's Commission
is not overwhelmed by too many issues. PARTICIPANT: I feel very strongly
that children with disabilities need to be included under the auspices of
the Children Commission. Too often their childlikeness and their needs as
children are ignored. All people see is the need to put people with disabilities
somewhere 'over there' where someone else can look after them. It is really
important that this Commission should cover all children. People with disabilities
have been excluded from the mainstream for so long. It is important that
they are not ignored again. PARTICIPANT: As an Aboriginal person, I am often
approached to deal with Aboriginal issues. There is no cultural boundary
when it comes to kids: they need us all. If we start putting people into
little boxes, we can create a bigger problem. PARTICIPANT: I am wondering
how, in the proposed Commission, vulnerable groups will make their voices
heard on issues other than child protection. PARTICIPANT: I think it is
fair to say that those of us in this room have a shared concern that the
Children's Commission should look at the big picture, but the government
is not going to respond without a very concerted effort on our part. Our
most important challenge is to develop a strategy which will continue to
engage the media and keep them engaged in supporting the establishment of
a Children's Commission which addresses the big picture. sources of advice
TO THE COMMISSION Advisory Committee PARTICIPANT: I am interested in what
would be the most effective model for an Advisory Committee. JC: It is vital
that not only the government and non-government sectors but also the wider
community should be involved. The Interagency Guidelines for Child Protection
Intervention clearly state that child protection is not just the responsibility
of government or of one government department, it is everyone's responsibility.
This is central to prevention too. The Commission could have more than one
advisory body. Alternatively it could have only one advisory body but the
Commissioner could be given the discretion to consult with other people.
I would be concerned to see us adopt the Queensland approach which leaves
the choice of sources of advice entirely to the Commissioner's discretion.
On the other hand, I would also be concerned if the advisory body were totally
appointed by the government or Minister. The best is probably a combination
of the two, but there is room for further creative thinking on this issue.
PARTICIPANT: The Green Paper seems to support the idea of giving the Commission
the power to seek advice from people with various different areas of expertise,
but without any common thread. JC: It may be possible to have some kind
of compromise, where an overall Advisory Council has subgroups that deal
with some specific functions and specific expertise, a bit like the Child
Death Review Team. The overall Team comes together on a much less regular
basis than do its various screening subgroups which look at cases on a regular
basis. The tasks of setting agendas and approving overall work plans and
the annual report remain the responsibility of the overall team. The NSW
Child Protection Council's committee structure also involves various Work
Groups which are responsible for developing strategies for addressing different
aspects of the Council's work program. The form the Advisory Committee might
take will also depend on the range of functions the Commission has to perform
and whether it has the overall supervisory role that the Royal Commissioner
envisaged. DISCUSSION SESSION 2 FUNCTIONS OF THE CHILDREN'S COMMISSION INTRODUCTION
The second discussion session addressed issues related to the following
proposed functions of the Children's Commission: 1. advocacy 2. special
guardianship 3. complaints handling and monitoring 4. screening and probity
checking. A recurring theme of the discussion of functions such as advocacy,
special guardianship, and complaints handling, was the need for the Commission
to be accessible to children and young people. The Green Paper questioned
the compatibility of the following combinations of functions: advocacy
and complaints handling advocacy and special guardianship complaints
handling and special guardianship. These issues featured prominently in
the discussion. Advocacy Systemic or individual advocacy, or both? PARTICIPANT:
I don't see why the Commission can't be involved in both. In fact I think
this is essential. The Commission could act as a base for the operation
of an advocacy network and use the information it obtains in this role to
develop and improve systemic advocacy. This does not mean that the Commission
would necessarily have to be involved in individual advocacy. Attachment
to the Children's Commission would ensure a good home for the children's
advocacy network. JC: I agree. The report of the Legislative Council's Inquiry
into Children's Advocacy recommended that a network of twenty advocates
be based at the Office of Children and Young People. That recommendation
was made before the Royal Commission brought down its report and was part
of a different model under which the Child Protection Council was also to
become part of the OCYP. I agree with what the Green Paper says about the
importance of letting young people choose the advocates they want. Advocacy
for children from 0-5 Participant: One issue which has not been addressed
is the need for advocacy for children from 0 - 5 years. As we all know,
this is the time when children do most of their growing but are not able
to be advocates in their own right. It is vital that the Children's Commission
should address the social, physical and emotional issues that affect children.
Related issues which also need advocacy are the provision of child care
and early intervention services for families with infants and young children.
Funding for advocacy PARTICIPANT: Independent funding for advocacy is vital,
as the current situation in Victoria clearly demonstrates. Victoria has
recently defunded a number of advocacy organisations and drawn up new advocacy
agreements which require a signed undertaking that funded groups will not
lobby against the government. Policy development PARTICIPANT: Organisations
often spend so much time monitoring, assessing and reporting that they lose
sight of their planning role. Did any of the models for a Children's Commission
that Judy Cashmore looked at work well in practice in terms of developing
broader strategies to promote the wellbeing of children? JC: A number of
the bodies I looked at had a policy development role and a role in encouraging
best practice. This function is currently carried out by the Child Protection
Council in relation to child protection, and should be extended to be an
important part of the new Commission's responsibilities. GUARDIANSHIP NS:
Vanessa Francis from SNYPIC made a powerful argument for guardianship going
to the Children's Commission. The Green Paper floated the idea that the
Office of Public Guardian might take on the function of Special Guardian.
What are other people's views? PARTICIPANT: We need to look at two issues:
where the guardianship function should be located and how it should work.
At the moment, we are talking in a bit of a vacuum because, although the
Legislative Review has addressed these issues we do not know what it has
concluded. As the discussion progressed, it became clear that, before finalising
their responses to the Green Paper, participants would like to know what
recommendations the Legislation Review Report would be making about changes
to guardianship. As a reflection of this general feeling, participants from
the floor of the forum moved a motion asking the Minister to release the
Legislation Review Report immediately. The resolution was passed unanimously.
Who will really be making the decisions? PARTICIPANT: I have a grave concern
about saying that we want young people to come under the guardianship of
the Children's Commission when we don't know how that Commission is going
to be elected or appointed and what the skills of its members may be. We
need to think very seriously about how that Commissioner is going to be
appointed and who is going to have the power to make decisions on it. After
working for 21 years in children's services and women's services, I have
learnt that sometimes people gain a lot of power but not for the best reasons.
They attain positions which give them the power to make decisions for Ministers
because Ministers call on them for advice. The Commission must be much broader
than one or two powerful people making all the decisions. Is there a conflict
with other functions? PARTICIPANT: While I consider the idea of moving the
role of Special Guardian from the Minister to the Children's Commission
to be a giant leap forward, I would like to hear other views on the matter.
Are there conflicts of interest between guardianship and advocacy or guardianship
and complaints handling which would make it better to give the role of guardian
to a separate body such as an Office of Public Guardian or a separate Children's
Guardian? PARTICIPANT: As a young person who has been in care I think that
the same person can be advocate and guardian. Parents are both advocates
and guardians for most children and it works very well. As long as children
are involved in the decision-making process it can work just as well when
someone other than a parent is both advocate and guardian. PARTICIPANT:
Although I don't see any conflict between advocacy and guardianship, I think
special guardianship should be apart from the Children's Commission. This
is because you want a children's guardian to focus on the guardianship function.
If they have a whole lot of other functions as well, they won't give their
guardianship role enough attention. NS: Would that be an argument for guardianship
being held in some kind of Office of Children's Guardian which, as a subset
of the Commission, would preserve and specialise the function without impinging
on or being impinged on by the other functions? PARTICIPANT: I think the
notion that a large body can be a guardian for children has a lot of unworkable
aspects. I would like to hear what young people in care think about the
type of guardianship system they would like. We need to ensure that, whatever
arrangement is made, we set up a system where children can know and have
access to their guardian and meet with their guardian on a regular basis.
PARTICIPANT: My concerns go back to the issue of the Children's Commission's
focus. If the Commission gets involved in functions such as guardianship
and probity checking, it will not also be able to focus on the big picture
issues which affect all children. It is critical that the Commission should
be broader than that. People will not warm to the organisation if it is
a reactive body. It needs to have a broader vision about children and their
place in society PARTICIPANT: The guardianship function itself can be the
source of complaints. Where do you go to complain if the Children's Commissioner
is already your guardian? I would see the guardian being very closely associated
with this Children's Commission or Children's and Young People's Commission
but the same person should not be trying to perform both roles. In relation
to adult guardianship they introduced a Guardianship Act that removed the
idea of the Minister as guardian and gave that responsibility to a bureaucrat.
I don't agree with this. The responsibility must remain the statutory responsibility
of the Minister, not abdicated to a bureaucrat. JC: As Patrick Parkinson
pointed out earlier, if a young person wishes to appeal a major decision
by the guardian (say in relation to having an abortion or moving interstate),
this can be done through the courts or through the Community Services Appeals
Tribunal. PARTICIPANT: The powers are certainly there for a young person
to appeal to the courts about decisions on such important issues as having
an abortion or some other major medical procedure or moving interstate.
Going to the Supreme Court is, however, a complicated process. You would
not want a young person to have to do this over more day-to-day issues.
There needs to be a simpler and more accessible mechanism for appeal. Alternatives
to one guardian for all children PARTICIPANT: I don't know why we perpetuate
the notion that one person must be guardian for all these children when
there are many people in the community who could serve this function. I
think we should look at expanding the role of guardian. Many of the Ministerial
responsibilities referred to above are already delegated to DCS Managers
and Assistant Managers, so delegates are already exercising those responsibilities.
PARTICIPANT: When an adult needs a guardian, that role is served by the
Office of the Protective Commissioner or by a person appointed by the Guardianship
Board. The person appointed may be a member of the family or somebody who
has an interest in the person in need of guardianship. The appointee is
supervised to ensure that the adult's interests are being protected. With
children, someone such as their foster carer or the head of an agency could
be appointed. JC: I agree that one person does not necessarily have to be
guardian for all children in care. On the other hand, taking children away
from their families and assuming full parental responsibility is a function
which can only be exercised by the State. PARTICIPANT: I feel very strongly
about the guardianship issue and many other issues. I work for a foster
care agency. Although we often have a child from infancy through to adulthood,
when the question of guardianship comes up, we are asked to stand outside
the room. It is very difficult to have a child you care for very much but
know that, at the end of the day, you will have no say in decisions which
will affect the rest of her life. PARTICIPANT: I would like to talk about
guardianship from an Aboriginal perspective. Aboriginal people have, for
a long time, been on the receiving end of the policies and practices dished
out by the State. As a foster parent for about ten years I have also found
aspects of the guardianship issue really frustrating. After putting a lot
of time and care into my foster kids, I found I had a very menial role compared
with that of the Department. I built a protective shield around them for
a time but, when they reached fifteen or sixteen and went elsewhere, the
agencies looking after them were not good listeners and did not allow them
voice. Young people have their own minds. We cannot make big decisions without
their input. PARTICIPANT: Whoever has the role of Special Guardian for children
in care, a key issue to be addressed is the need for that agency or Commission
to ensure that young people can develop a long-term relationship with their
guardian or with their guardian's representative, whether a foster carer
or a worker. Complaints Handling Participant: I understand from the discussions
that the Commission is hoping to be accessible to children and young people
in relation to a wide range of issues, many of which are not covered by
our traditional services and methods. It is difficult to determine the Commission's
complaints handling role without knowing more about the sort of complaints
this is likely to produce. It may be entirely appropriate for the Commission
to deal with some of these complaints itself and refer others to other complaints
or grievance handling bodies. This ties in with the 'one stop shop' idea.
The Children's Commission would be the first and central contact point for
providing direct help or making referrals. In addition, complaints handling
is part of good customer service. It is a way of obtaining feedback on the
standard of service an organisation is delivering. It is important for the
Children's Commission to receive this feedback. Participant: My major concern
is that the proposed Children's Commission will be such a large organisation
with so many different functions that this could affect its ability to focus
on the complaints handling function. I am also concerned that adding the
complaints handling function to the other work of the Children's Commission
could mean a diminution of existing services and the fact that the Commission
would have to develop expertise which already exists elsewhere. We have
seen a watering down of the resources available for service development
and service delivery. There are already insufficient resources to handle
the increasing numbers of complaints being made. Also, complaints handling
bodies are constantly being criticised by government for pointing out the
inequities in the system. In my view, to transfer complaints handling functions
to the Children's Commission could make the situation worse. THE GENERAL
QUESTION OF ACCESSIBILITY PARTICIPANT: The critical point is that, wherever
the complaints handling function is located, whether it remains with the
Community Services Commission or goes to the Children's Commission or some
other body, the Children's Commission should be the central contact point
for children wanting to initiate a complaint. The Children's Commission
should focus on empowering children by giving them the skills and knowledge
to know where and how to obtain their rights. The Commission should also
be available to support children as they go through the process. We need
a process which will not only respond to children in positive and proactive
way but which will resolve their complaints and empower them as well. PARTICIPANT:
We in the disability area have found that outreach is absolutely critical.
The Children's Commission must go where the children and young people are.
PARTICIPANT: As the young person from SNYPIC pointed out, the Commission
must not be located on the 11th floor of an inner city building. It must
be at ground floor level where young people can walk in. Also, it must create
an environment which is not intimidating for young people and where they
know they will be heard. Young people should not have to go in alone to
confront an adult on a one-to-one basis. This can also be intimidating.
They must be allowed to have support people with them. Support for a 'one
stop shop' PARTICIPANT: Wherever the functions of guardianship, or complaints
handling, or advocacy are located, whether at the centre of the Children's
Commission's functions or connected with the Commission but slightly to
one side, the message from young people seems to be that they want one place
they can go to access all these services. Participant: I agree with the
'one stop shop' approach but it must be young people friendly. You can't
expect young people to hold on the phone for hours or be transferred from
one person to another and have to tell their story over and over again.
This would disempower them and they would certainly hang up. Participant:
The discussion so far has been fairly metropolitan focused. The issue of
accessibility is not just one of location; it is also about engaging in
a culture of accessibility. It's not just how you use the phone or the Internet
or some other form of technology. It requires a broader framework which
reaches out to young people where they live, whether in metropolitan or
rural areas. Participant: I would like to endorse the point about involving
young people. I work for a peak organisation responsible for supporting
primary school age children. They don't often get the opportunity to have
an input into decision making processes. A world-wide organisation called
the International Play Association has looked into different the functions
of different types of Commissions and made some suggestions as to how young
people might be involved. I believe that young people should be involved
in all the different tiers of government right down to local government.
In Germany, for example, they have a Children's Parliament. SCREENING AND
PROBITY CHECKING PARTICIPANT: I would like to raise the question of the
Commission's role in relation to employment screening and probity issues.
The independent schools have been talking with a range of organisations
about the need to keep records on those whose employment (whether as teachers,
cleaners, janitors, volunteers, parents, bus drivers, etc) would pose an
unacceptable risk to children. We are reluctant to require individual employers
to become record keepers with whom other employers have to check. We would
prefer to see the information stored at a central checking point. Do you
see the Children's Commission as the appropriate keeper of these records?
JC: First, I should point out that a task force based in the Premier's Office
is currently looking at all these issues. Second, none of the local or overseas
Commission-type bodies I examined had screening and probity checking functions.
I believe there is a problem in including screening and probity checking
among the functions of the Children's Commission because they require different
skills and would give the Commission a different focus. They might, however,
give the Commission a critical mass. PARTICIPANT: While screening and probity
checking are important functions, they are not necessarily functions which
should be performed by a Children's Commission, The Community Services Commission's
Who Cares? report strongly recommended that screening and probity checking
be done by a stand-alone agency and not by individual employers. This was
partly because of the difficulty other employers would have in accessing
the information and partly because the information could be highly sensitive
and in some cases false or malicious. This function should not be performed
by the Children's Commission, first because it is out of kilter with the
Commission's other functions and would create an image which would not necessarily
help the Commission with its other functions. A screening and probity checking
agency would need to have the right to access records not just from past
employers but also from police. These records could include information
not only about convictions, but also about charges pending and acquittals.
With our highly mobile population, the agency would also, on occasions,
need access to information from police in other states, from immigration,
and even from Interpol. The second reason is that people with disabilities,
whether in full-time, part-time, or temporary care, are also vulnerable
and screening and probity checking functions need to be performed for them
too. THE IMPORTANCE OF LOBBYING I would like to remind those attending this
forum that this is a year when the State government is planning for the
election to be held in March 1999. If we are ever going to have an opportunity
to influence government, the time is now. We need to continue to hold these
sorts of meetings and forums, to get our point across. We also need to involve
the media if we are going be have any success in promoting change. There
are some 90 agencies here. We must remember that we are all advocates for
children and young people and have a major role to play in this. I would
also like to extend a special thank you to ACWA, the NSW Child Protection
Council, SNYPIC and the Youth Action and Policy Association (YAPA) for organising
today's forum and encourage them to continue this good work. FORUM SUMMARY
By Gawaine Powell-Davies general themes and issues As it is impossible to
summarise what everyone has said, this summary will try instead to draw
out the major themes of the meeting. There was an overall sense that people
were all moving in the same direction and that there is a strong consensus
about the type of organisation the Children's Commission should be. The
general themes which emerged are as follows: Importance of proposed Children's
Commission: The establishment of a Children's Commission is a very important
issue and an important opportunity that everyone wants to make the most
of. Importance of historical perspective: History really matters. The legacy
of the Wood Royal Commission, the existence of organisations like SNYPIC,
our history of community services, are all factors which will influence
people's thinking and the kind of organisation which is established. History
in the broader sense (what has happened in other States and other countries)
is also important. We must not be prisoners of just our local experience
of the past few years. Importance of lobbying: The forum recognised that
there is a major lobbying job ahead to ensure that people get the sort of
Commission they want. There was also a feeling that, with an election ahead,
now is the right time for that lobbying. A question of balance: The Children's
Commission must strike the right balance between the following: The
rights of children and young people and the welfare of children and young
people. Being generalist and/or specialist. (While recognising that
people's lives and circumstances are special, we need an organisation which
will have an overview and which can act as a broad advocate.) Prevention
and healing (the need to provide help but also work preventatively without
getting caught up in one at the expense of the other). Doing and overviewing
(being a hands-on organisation that deals with individual cases or an organisation
which sits above and looks at the direction of things that are going on
and where the systemic strengths and weaknesses are). ROLE AND JURISDICTION
Scope/focus Specific issues discussed were: Should the Children's Commission
cover all children or focus more specifically on vulnerable groups of children.
If so, how should vulnerability be defined? The fact, for example, that
a child has a disability may not necessarily mean that child will be vulnerable
in other ways. In other words, how do we understand the concept of vulnerability?
Should the Commission focus on the broad, social issues which affect
all children or more specifically on issues which affect young people in
care? How can the Commission balance the various interests and make
a difference where it most counts? What sort of image will the Commission
need to make it accessible to young people? How can the Commission be
accountable to young people? Should the Commission be a direct service
provider or a review and advocacy group which provides advice on issues
but then retreats when the job is done? How close to the action should
the Children's Commission be? If the Commission focuses on individuals,
it will not see overall patterns. If it focuses only on systems, it will
not serve individuals' needs? Powers The power of the Children's Commission
was considered a critical issue. The meeting discussed a number of different
sources of power: legislative power the power that comes from having
community and sector support the power of government support and funding
the power that comes from having credibility with government (being
listened to). Impact on existing organisations What are the implications
of creating a Children's commission which emasculates the Community Services
Commission? What implications does the creation of a Children's Commission
have for other interest groups, such as people with disabilities? THE COMMISSION'S
FUNCTIONS A 'one stop shop' Whatever functions the Commission performs,
there was general agreement that it needs to be a 'one stop shop' to which
individuals, agencies and government can come. It needs to have enough of
an overview either to give people the answers they are looking for or to
refer them quickly to a place where they can get answers. Possible conflicts
of interest The Green Paper contains a lot of discussion about the many
different functions the Wood Royal Commission proposed for the Children's
Commission, and whether it is possible for one organisation to perform these
different functions effectively without a conflict of interests. The forum
looked at this question in relation to the following: If an organisation
has different functions, it will need people with different skills. The
skills required for maintaining a large data base will, for example, be
different from the skills required for policy development. Can an organisation
whose role includes monitoring whether others are doing the right thing
also effectively carry out more nurturing roles such as providing advice,
support and advocacy? Where can people go if they are dissatisfied with
the Commission itself? How well will the proposed Children's Commission
fit into the broader environment of existing structures such as, community
services, school education, and so on? Will the Commission communicate effectively
with these other organisations? The need for other parts of the system
(community services, school education, etc.) to accept and support the Children's
Commission and its allocated roles. ADVOCACY There was general agreement
that a strong advocacy role is critical for the Commission, and discussion
about whether this should involve individual or systemic advocacy, or both.
There was a feeling that we need to preserve the choice and diversity of
advocacy that already exists; also, that the role of the Children's Commission
should be to galvanise the whole sector to become better advocates for children
and young people. Access: There was consensus that the Commission must be
accessible. The question of access was raised repeatedly in relation to
the Children's Commission's role in advocacy. The same issue was also raised
in relation to guardianship and the Commission's role in the investigation
and monitoring of complaints. Guardianship Again, there was general agreement
that this is an important issue and that the current system is inadequate.
There was a feeling that, since the Legislation Review was looking broadly
at this issue, it would be premature for the forum to make a decision before
seeing the arguments and recommendations put forward as a result of that
review process. Investigation and Review 'One stop shop': There was strong
support for a 'one stop shop' where people can go with complaints. There
was some uncertainty whether the organisation should investigate complaints
or refer to other complaints-handling bodies and follow up to ensure that
complaints do not fall between the gaps. Outreach: There was a strong message
that the Commission will only be successful, whether as advocate or complaints
handler if it develops effective outreach and is accessible to all, including
rural areas and also if the information obtained through the complaints-handling
functions lead on to the development of policies and better strategies for
providing advocacy. Concern that Children's Commission should not become
so caught up on individual issues that it did not have time to address the
systemic issues. Need to retain support of government and the field: A related
issue raised about complaints handling and monitoring functions was the
need for the Children's Commission to avoid taking an oppositional stance.
There was a feeling that this might put the Commission offside with decision-makers
in government or service-providing organisations and agencies and reduce
its effectiveness. Employment Screening There appeared to be little enthusiasm
for the Children's Commission to also act as an employment screening agency.
While there was general agreement that these are important functions, there
was also a concern that the Commission might become bogged down in controversy,
if it took on such a large and politically difficult activity.
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