Ms ROSOL (Bass) – Honourable Speaker, when the commission of inquiry handed down their report, they wrote: ‘It is important that children’s rights and safety receives the focus and attention it deserves.’ For that reason, they recommended a new Commission for Children and Young People to be established. On behalf of the Greens, I’m pleased to indicate that we will be supporting the Commission for Children and Young People Bill 2025.
There are dozens of recommendations from the commission of inquiry that relate to the commission and our assessment is that this bill closely follows these recommendations. There are a lot in here, but I’m going to refer to them, because it’s helpful to have the ways that this bill addresses the recommendations on record. I will have some questions along the way, as well.
The commission of inquiry recommendation 18.4.a. and 18.6.2.a. and b. outline that the independent regulator should be embedded within the new Commission for Children and Young People. This relates to an element of the bill that is unclear to me. Clause 7(2)(a) sets out that the commission is composed of the commissioner, the Child Advocate, and the Commissioner for Aboriginal Children and Young People. Clause 7(2)(b) sets out that it also includes the Independent Regulator and the Deputy Regulator if these officers are not also held by a commissioner. This means if these officers are held by a commissioner they do not form part of the commission, but if they are held by a separate person they do.
Initially, we thought this may be an error, however, I understand from advice we have sought that it is deliberate. As I understand it, the current Independent Regulator will form part of the commission. However, when all the provisions are proclaimed, it is intended that the Commissioner for Children and Young People will be appointed as the Independent Regulator. That’s quite clear to me, but what’s not clear is what the rationale is for the independent regulator no longer being part of the commission, when the Commissioner for Children and Young People is appointed to that role. I understand that if it’s the same person, the person will be part of the commission by virtue of holding both roles. However, the current Ombudsman, Custodial Inspector and Health Complaints Commissioner are all the same person, but these various roles do not form part of the same office.
The Custodial Inspector is not part of the Health Complaints Commission, for example, despite also being the Health Complaints Commissioner. I would think that the Independent Regulator should be part of the commission regardless of whether or not they also hold another statutory office that is part of the commission.
As I understand the impacts of this, if the independent regulator is not also the Commissioner for Children and Young People, then they can, for example, perform functions and powers held by, ‘The Commission,’ including the functions listed in clause 8. However, if the Commissioner for Children and Young People is also the Independent Regulator, then wearing their Independent Regulator hat, they are not considered part of the Commission and, therefore, cannot exercise those same functions and powers under clause 8.
I note that the COI did not put a qualifier on their recommendation that the Independent Regulator should be embedded within the new Commission for Children and Young People. This appears to deviate from the recommendations and my question is why? What is the purpose of this? We haven’t prepared an amendment on this but may consider an amendment in council if there is not a compelling explanation.
COI recommendations 18.61 and 9.331 outline that the commission should include the roles of Commissioner for Children and Young People, Aboriginal Commissioner for Children and Young People, and the Child Advocate as a deputy commissioner, all subject to five yearly appointments. These recommendations are all met, other than the Child Advocate being a deputy commissioner and is instead a full commissioner in this bill. The supporting material for the draft bill argued that it would create conflict of duties of advocacy and regulation if the child advocate was in a deputised position. This is a reasonable explanation, so the Greens consider this deviation justified.
Paragraphs A and B of COI recommendation 18.7 outlined that the appointments for commissioners and deputy commissioners should be an externally advertised merit‑based selection process. The recruitment process for these roles include a nonpartisan adult selection panel with at least one member external to the Tasmanian State Service, and a separate children’s selection panel.
Most of these outlined requirements are specifically spelled out in the legislation and we acknowledge that going into this level of detail on these matters in legislation is uncommon. We take the level of detail stipulated in the provisions of this bill as a good-faith effort to align closely with the recommendations.
That being said, the recommendation that the adult panel be nonpartisan is not in the legislation. In fairness, it is difficult to see how this could be reasonably navigated in the legislation. To reasonably enact this, there would potentially need to be an assessment of political party membership, employment history, and the history of election campaign participation. This could be arduous and invasive, and would potentially disqualify, for example, a person who door-knocked for an Independent or a party candidate in the past.
Very few actual appointments would require such a disqualification. Electoral Commission appointments are the only ones that come to mind, let alone for selection panel membership.
On this basis we can understand not going down this path. We are, however, interested in hearing an explanation from the government. Was this considered? Were potential definitions of partisan considered? On what basis was it decided to not include this requirement?
COI recommendation 18.7C outlined that the adult and children’s selection panels for the role of Commissioner for Aboriginal Children and Young People should have a majority of Aboriginal members. The bill covers off on this recommendation in clause 1(2a) of schedule 1 to the bill.
COI recommendation 18.7D stipulates that before making a recommendation to the Governor for an appointment to the Commission for Children and Young People, the minister should be required to consult with the leader of any political party with at least two members in parliament. This recommendation is covered in clause 1(3) of schedule 1 to the bill – actually, I think that might be a typo, because it says three people in here.
Recommendation 18.62 states that the commission should have the functions of the current commissioner. In comparing the proposed functions, our view is that the existing powers are fully covered off on. Similarly, recommendation 18.63 provides that the Commission for Children and Young People should have all necessary powers to perform its function. This is a subjective matter, but our read is that it appears to be met.
Recommendation 18.62C outlines that the commission should administer the Independent Community Visitor Scheme for children in out-of-home care, youth detention and other residential youth justice facilities.
The bill provides that the child advocate is to establish an independent visitor scheme that applies to facility residents in a detention facility, children in out-of-home care, and children and young people in other prescribed facilities. I know that other residential youth justice facilities are not spelled out in the legislation but acknowledge that this may be covered by other prescribed facilities. However, given the lack of any other residential youth justice facilities at present, we recognise that may be difficult to define.
Minister, are you able to advise whether it is the government’s intention to prescribe, for example, assisted bail facilities? Are any other facilities in particular being considered for the regulations?
Recommendation 18.6.2. stated the commission should advocate for individual children in out-of-home care, youth detention, and other residential youth justice facilities. As previously mentioned, residential youth justice facilities are currently not covered by the bill. However, under clause 13(2(b)(i), the child advocate can advocate for any individual child or young person, including but not limited to a child or young person in a detention facility or in out-of-home care. Given the non-exhaustive list provided, sufficient scope appears to be provided to meet this recommendation.
Recommendation 18.6.2.e. provides that the commission should monitor the operation of the out-of-home care and youth justice systems and the provision of out-of-home care and youth justice services to children. The functions of the commission include to monitor and review the safety, wellbeing, care and treatment of children and young people in out-of-home care or the youth justice system, and to monitor the operation of detention facilities where facility residents reside.
As far as we can determine, no specific function of monitoring the operation of out-of-home care is in the bill. However, there are many examples of powers and functions that functionally empower the commission and commissioners to monitor the operation of out-of-home care.
Recommendation 18.6.2.f. says the bill should provide for conducting inquiries into the out-of-home care and youth justice systems and the services provided to individual children in those systems, including own-motion enquiries. The child advocate has the power to inquire into youth justice services or out-of-home care services if the child advocate is contacted about the provision of those services to a child or young person. The Commissioner for Aboriginal Children in Young People has similar powers in respect of Aboriginal children or Aboriginal young persons. The commission, more broadly, has powers for inquiry, investigation, and review on systemic matters. This recommendation appears to be covered off on.
Recommendation 18.6.2.g states the commission should have the function of making recommendations to the government for out-of-home care and youth justice system improvements. This is included in the functions of the commission.
Recommendation 18.6.2.h says the bill should provide for promoting the participation of children in out-of-home care and youth justice in decision making that affects their lives. The functions of the commission include to promote and empower the participation of children and young people in influencing decisions and expressing opinions on matters that affect their lives or the lives of all or a specified class of children and young people. While this does not specifically stipulate out-of-home care and youth justice, it is a broader mandate than is recommended and functionally provides for this.
Recommendation 18.6.2.i. relates to upholding and promoting the rights of children in the out-of-home care and youth justice system. The functions of the commission more broadly include to promote and uphold the rights of all or a specified class of children and young people, and the functions of the child advocate specifically include uphold and promote the rights of children and young people in a detention facility or out-of-home care. This recommendation appears to be comprehensively covered.
Recommendation 18.14.4. outlines that while the Commission for Children and Young People should be promoted as the key agency for receiving reports, complaints or concerns relating to conduct towards children. People should be able to raise reports, complaints or concerns with any of these agencies and these agencies should ensure the matter is appropriately referred. The no-wrong-door approach. While the functions do include assisting the making of complaints to other authorities, much of this recommendation isn’t specifically relevant to this bill. I would, however, request that the minister outline how the commission will be promoted as the key agency for receiving reports.
Recommendation 9.37 outlines that the secretary of the DYCP should notify the Commission for Children and Young People of sexual abuse allegations involving children in out-of-home care that fall outside the reportable conduct scheme, including incidents of child abuse by non-carers and of the outcomes of investigations into those allegations. The Commission for Children and Young People should have the power to require the department to provide it with information about its responses to such allegations.
While the bill provides broad powers to compel information, mandatory notification from the secretary is not included in the bill, and I acknowledge that the recommendation was not specifically to legislate this requirement. Can the minister outline how this recommendation is intended to be enacted?
Recommendation 12.17.2. outlines that the Commission for Children and Young People should annually review the use of electronic surveillance in detention to determine whether it increases children and young people’s feelings of safety in detention and should continue to be used. The initial review should seek the views of children and young people at Ashley Youth Detention Centre on whether electronic surveillance should be deployed in the proposed new detention facility. The functions of the commission include quite specifically to monitor and review the use of electronic surveillance in detention facilities at regular intervals of not less than 12 months and make recommendations on whether the use of electronic surveillance is appropriate or recommended and on any other matters in relation to electronic surveillance that the commissioner considers appropriate.
Recommendation 12.25.b. outlines that the Tasmanian government should introduce a new process for approving transfers of young people from youth detention to an adult prison facility that requires the Department for Education, Children and Young People to notify the Commission for Children and Young People of any proposed transfer. I note this is not included in the bill but acknowledge that the recommendation was not specifically for something to be legislated. Is the minister able to outline how this recommendation will be enacted?
Recommendation 12.25.d. is for the Magistrates Court to be required, in determining whether to approve a transfer, to consider, among other matters, to seek the views of the Commission for Children and Young People on the appropriateness of the transfer? This is likewise not included in the bill, though I assume this would be required to be legislated. Can the minister outline what the plan is for this recommendation?
Recommendation 12.32.b. was for all incidents of harmful sexual behaviours in youth detention or other residential youth justice facilities to be reported to the Commission for Children and Young People. Again, this isn’t included in the bill as far as we can tell. Can the minister outline whether this will be legislated and in what legislation?
Recommendations 12.31.2.e.iii. and 12.33.2.c.iii. are to ensure Ashley Youth Detention Centre and any future detention facility provides the search register, the use of force register and all relevant supporting documentation to the Commission for Children and Young People on a monthly basis or more frequently. This is somewhat addressed in the bill. The commission can request or compel this information as needed and it is explicitly outlined in their powers. However, there is no requirement for this information to be proactively provided on a schedule. Can the minister outline why this approach has been taken?
Recommendation 9.27.c.iii. is to ensure when a child in care is admitted to youth detention or another residential youth justice facility that the child’s child safety officer notifies the Commission for Children and Young People of this child’s admission to youth detention. This is not included in the bill. Can the minister please outline if there is an intention to legislate this at a later point or if this is to be handled through non-legislative mechanisms.
Recommendation 12.38.b. is to ensure the commission has the power to enter adult prison facilities to visit children and young people in those facilities to monitor their safety and wellbeing.
In this bill, the commission has the power to enter detention facilities, which is defined to include a prison within the meaning of the Corrections Act 1997, where a child or young person may be detained or otherwise reside.
The Corrections Act 1997 defines prison to include a place of detention, irrespective of the title by which it is known, and includes the whole area, whether or not walled or fenced, established as a prison. This is quite broad and would appear to comprehensively cover off on this recommendation.
Recommendations 12.38(C) and 18.8 are to ensure the commission is adequately resourced on an ongoing basis to fulfil its systemic monitoring functions and is separately and directly funded rather than through DCYP. Any funding arrangements or conditions should be structured to ensure the commission has power to control its budget and staffing. While this is not necessarily a matter for legislation, I would like the minister to outline any details they can in respect of how the government intends to address this recommendation.
Recommendation 12.39(A) was to appoint the commission as an additional NPM. While, this is not included in the bill, under the OPCAT Implementation Act 2021, the Governor may appoint a person or more than one person as a Tasmanian national preventive mechanism.
I note that these provisions relate to the appointment of a person as an NPM and the COI recommended the commission, not a commissioner, be appointed as an NPM.
Has the government sought advice on whether or not the wording of the OPCAT Implementation Act 2021 would allow for the commission to be appointed as an NPM?
Does the government have a position on this matter?
Recommendation 18.9 was for a joint standing committee of the Tasmanian parliament that should oversee the performance and proper execution of functions of the Commission for Children and Young People. This recommendation is adopted in full.
Recommendation 9.35 was for legislation establishing an independent child advocate in the Commission for Children and Young People and should provide the Child Advocate with power to make a complaint to the Ombudsman on behalf of a child who is in out-of-home care, youth detention or another residential youth justice facility, seeking the child’s permission to do so first.
The bill does establish a child advocate and they have the power to assist and support any individual child or young person to make a complaint to a statutory complaint authority or to make a complaint on their behalf with the consent of a guardian.
Recommendation 12.38(A) is to ensure the Commission for Children and Young People has functions and powers to monitor youth detention centres, other residential youth justice facilities and the youth justice system more broadly, including regularly monitoring and reviewing custodial population data and information on serious or adverse incidents and the use of isolation, force, restraints and searches, conducting regular on-site inspections and conducting own-motion inquiries into systemic individual or group issues. This is quite a substantial list, and we believe all of these outlined powers and functions are within the bill.
Finally, recommendation 9.38(1) is that the commission should monitor the out-of-home care system and services to children; monitor data and conducting own-motion systemic inquiries; conducting own-motion inquiries into the services received by an individual, child or group of children in out-of-home-care; making recommendations to the government for out-of-home care system improvements; advocating for children in out-of-home care, including supporting children to make complaints and to apply for independent reviews of departmental decision making; administering the independent Community Visitor Scheme; and upholding and promoting the rights of children in out-of-home care. All these matters appeared to be covered by the bill.
I thank members for their patience, but it’s really pleasing to see that so many of the commission of inquiry recommendations have been covered in this piece of legislation. It’s a thorough piece of legislation, and the commission will go a long way and will do the work of ensuring that children’s rights and safety are an important focus in Tasmania.
I thank the minister for bringing forward this bill and I thank also your staff for the briefing that they provided to our office.
The construction of various provisions of the bill make it clear that considerable effort was put into covering the COI recommendations very closely and we are pleased that this is the case, and on behalf of the Greens, I will just say again that we are pleased to support this bill.
