Page 3091 - Week 10 - Tuesday, 23 August 2005
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Finally, the establishment of the commissioner fulfils the commitment of the government in relation to Vardon report recommendation No 8.24. On 6 September 2004, I released a position paper for a proposed commissioner. On 8 April this year, I released the Emerging themes report on the views of children, young people and the report on the public consultations with 2,557 individuals and organisations through submissions, surveys and workshops.
The commissioner will not devolve the role and responsibility of parents who are the best advocates for the majority of children and young people. A commissioner is required because not all children and young people have parents or guardians or have parents or guardians who will advocate in their best interests.
A feature of the children and young people commissioner bill is that parents and guardians, children and young people, agents and carers can approach the commissioner. In the bill, when someone is affected by the act of service, they are an aggrieved person. This may include families, parents, guardians or carers if the service was provided to them. When a person is aggrieved, they make a complaint under section 43 (1) (a) of the Human Rights Commission Act 2005.
Children and young people can also be an aggrieved person and make a complaint. Clause 24 adds a new subsection 43 (2) (b), which ensures that if a person has a legal disability they are not, excluded from making a complaint. By law a child or young person is considered to have a legal disability due to age. This clause ensures that a child or young person can make a complaint to the children and young people commissioner.
An agent of an aggrieved person can make a complaint. To be an agent, the aggrieved person or the human rights commission has to authorise the agent in writing. This provision is in subsection 43 (3) of the Human Rights Commission Act 2005.
Clause 23 provides that a parent or guardian can make a complaint on behalf of the child or young person who is aggrieved. Carers can make a complaint if they have guardianship or have control of the affairs of the aggrieved person under another law or an order of the court or tribunal. Carers include foster carers. If a person is a voluntary carer and does not have a legal mandate to care for the child or young person—for example, a relative or kinship carer—they could lodge a complaint as an agent of the aggrieved person.
If the complainant is unable to get a conciliation agreement or is unhappy with the way a complaint is progressing they may be able to seek a new decision about their complaint from the ACT discrimination tribunal. To approach the discrimination tribunal, the complaint must be about discrimination and fall under the Discrimination Act 1991. The complainant must also get a referral from the human rights commission to the ACT discrimination tribunal under section 53, section 64 or section 82 of the Human Rights Commission Act. A complaint cannot be referred to the discrimination tribunal if it is not a discrimination complaint falling under the Discrimination Act 1991 or, if it is a discrimination complaint, the parties to the complaint have made a conciliation agreement.
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