TasCOSS calls on ministers to end the politicisation of child protection

4 August 2017 Dear Premier, I am writing to you in conjunction with a range of community service organisations to implore you to take action to address the long term issues and concerns that have surrounded the role of Children’s Commissioner in Tasmania.

Children have a special need for protection (and policies). Actions concerning children's lives need to be undertaken with a specific understanding of their needs and rights. Australia is a signatory to the Convention on the Rights of the Child (United Nations, 1989) and one of the ways Australia meets its obligations under this convention is through the establishment of children’s commissioners and guardians.

As you would be aware, Tasmania has had over a decade of debate around the powers of a Children’s Commissioner and the role has been the subject of much political, public and media debate. This has spanned a range of governments and Ministers. Importantly, this debate has usually been triggered following a significant incident or death of a child or major system issue. It is for this reason we are calling for an end to the politicisation of vulnerable children. We are calling for an end of debate by now taking action to strengthen the powers to the highest possible level once and for all.

In researching the range of Children’s Commissioner models across Australia, the following elements present in some other states and territories would provide important increases in power. A Royal Commission on South Australia’s child protection system reported in August 2016 and recommended the establishment of a Children’s Commissioner with “powers equivalent to those currently held by the Ombudsman.”1 The Royal Commission based many of its recommendations on the powers of a Children’s Commissioner on the Welsh model, which was commended to the Commission in the course of its evidence gathering. The Welsh Children’s Commissioner, established since 2001, is an example of a robust Children’s Commissioner with broad capacity and functions. 2 The SA Royal Commission recommendations are as follows: 1 The SA Ombudsman has all of the powers of a Royal Commission, and hence can summons any person to attend, to provide any document and to give evidence on oath or affirmation. p.xxix https://www.agd.sa.gov.au/sites/g/files/net2876/f/preface_summary_and_recommendations.pdf?v=1491456705 2 p594 https://agdsa.govcms.gov.au/sites/g/files/net2876/f/complete_report_child_protection_systems_royal_commission_report.pdf ?v=1494388953

The power to dismiss a Commissioner be modelled on that of the Independent Commissioner against Corruption (9) The Governor may, on the address of both Houses of Parliament, remove the Commissioner from office.

(10) The Governor may suspend the Commissioner from office for— (a) contravention of a condition of appointment; or (b) misconduct; or (c) failure or incapacity to carry out official duties satisfactorily; or (d) failure to provide information to the Attorney-General as required under section 49 (11) If the Governor suspends the Commissioner from office, a full statement of the reason for the suspension must be laid before both Houses of Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament.

(12) If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is removed from office.

(13) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the Commissioner to be restored to office, the Commissioner is restored to office. 3 The Children’s Commissioner have the authority to require a report from a relevant state authority about action taken on recommendations.

The authority from whom a report is required must respond in an identified timeframe, setting out the degree of compliance, any proposed action, and any decision not to act on recommendations and the accompanying reasons.

Report to Parliament with an unfettered discretion to publish information, including publication in a manner which is accessible to children.

The Commissioner for Children perform its function of inquiry and investigation to a level equivalent to the Ombudsman (which has the powers of a Royal Commission in respect to investigations), including:  compelling production of documents and materials, the equivalent of a subpoena or summons, from bodies or individuals, and extending beyond government bodies to the private sector and individuals;  compelling a person to appear to give evidence;  requiring a person to answer questions;  requiring a person or body to respond in writing to questions; 3 s8 http://www.austlii.edu.au/au/legis/sa/consol_act/icaca2012463/s8.html

 

entering and inspecting property; and appointing investigators

To allow the Children’s Commissioner to obtain information, the enabling legislation should provide an exemption from other laws which would restrict disclosure of relevant information. For example, provisions which prevent people engaged in the business of the Children’s Commissioner from inappropriately disclosing information which they have obtained in the course of their duties, which the Commission also views as appropriate. Furthermore, it is appropriate that the legislation include protections for whistleblowers, to prevent them being victimised because of making a complaint or otherwise assisting the Children’s Commissioner.4 Tasmania’s legislation isn’t consistent with the above in three key ways: 1. Termination of appointment. There is no requirement for the reasons for a Commissioner’s termination to be presented to Parliament.

2. The Tasmanian Commissioner does not have the power to require a relevant state authority to report on actions taken on recommendations. Giving the Commissioner this power would increase its authority and effectively give it more ‘teeth’.

3. A person must comply with a requirement of the Commissioner under subsection (1) unless, to do so, would require the person to provide information, answer questions, or produce documents – (a) in respect of which there is a lawful claim or right of privilege; or (b) that contain information, communicated to a medical professional in confidence, relating to the physical, mental or psychological health of a person; or (c) that may incriminate the person in an offence. 5 It is clear from a brief glance at the role across Australia there are still a range of ways the role of the Children’s Commissioner in Tasmania can be strengthened. We urge the Parliament to take immediate action to ensure the next Commissioner can operate independently and with the fullest powers. This will ensure we have removed the potential for political or legislative barriers that prevent us working for the needs, interests and wellbeing of vulnerable children and young people.

4 p598 https://www.agd.sa.gov.au/sites/g/files/net2876/f/part_vi_-_system_wide_changes_to_improve_safety.pdf? v=1491456673 5 S 12 http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=all;doc_id=2%2B%2B2016%2BAT@EN %2BSESSIONAL;histon=;pdfauthverid=;prompt=;rec=;rtfauthverid=;term=;webauthverid=

Yours Sincerely,

Kym Goods CEO