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Legal and Constitutional Affairs References Committee
Commonwealth Commissioner for Children and Young People Bill 2010

CHAIR —Dr Baker, I welcome you to our hearing this afternoon. We have your submission, which is numbered submission 54 for our purposes. I will now ask you to make a short opening statement and then we will go to questions.

Dr Baker —Thank you for this opportunity to meet with the committee and provide evidence. NDS represents around 700 non-government organisations across Australia that provide services to people of all ages with disabilities, including children. We welcome this bill to establish a Commonwealth commissioner for children and young people.

Broadly, NDS wants to see the interests and needs of children and young people with disabilities reflected in all mainstream family and children’s policies, including education. This vision of the inclusion of people with disability including children with disabilities is consistent with the National Disability Strategy which Council of Australian Governments endorsed in February this year. This is a strategy designed to promote the rights, wellbeing and inclusion of people with disabilities in all domains of life.

People with disability, including children with disability, have a history of social isolation and social exclusion. The report recently released by the National People with Disability And Carer Councils called Shut out reinforces this picture of children with disability experiencing risk and exclusion in many domains of their lives. There are disturbing experiences in that report which relate directly to children with disability.

There is a strong association that we know of between disability and factors that are detrimental to a child’s wellbeing and safety. These include poverty and social exclusion. In 2003 almost two-thirds of school-age children with disability reported experiencing difficulty at school, and the principle source of that difficulty was problems fitting in because of communication and learning difficulties. So a major experience of children at school was the experience of social isolation.

Research overseas shows that there is a strong—at least there is a higher prevalence—of abuse of children with disability when compared with children in general. Because of this, we see a particular vulnerability of children with disability. We are seeking explicit reference to children with disability in the bill. Thank you. I might leave it there.

CHAIR —Your submission is the second one we have had today that talks about supporting a public health model. I am trying to crystallise in my mind what a ‘public health model’ versus a ‘rights model’ is. Can you assist me with that? Does one lead to the other?


Dr Baker —I think the two are related. The health model focuses on strategies to, for example, support positive family relationships or support better eating habits—which all contribute to the wellbeing of children and to the resilience of children and so decrease their vulnerability. This can be based upon a recognition of the rights of children with disability to be respected, nurtured and properly supported.

CHAIR —So not just the rights of the individual but also the rights embedded in a broader, more holistic sort of rights and welfare of the children. Would that encapsulate it?

Dr Baker —Yes, I think so. We are recognising that prevention and early intervention programs are a better approach and are more effective and often are even more cost-efficient than intervening only during times of a crisis—when a child is in crisis.

CHAIR —This legislation currently identifies, in particular, asylum seekers and Indigenous children. Your submission suggests that it should specifically mention children with disabilities.

Dr Baker —Yes. The reasons for that are, as I have outlined, that there is a particular vulnerability that children with disability have and there is evidence that rates of abuse among children with disability are higher than in the general population. Because children with disability often require specialist support, they are, I think, a particularly vulnerable group.

There are opportunities to include in the bill a direct link to the United Nations Convention on the Rights of the Child. Article 23 of that convention explicitly relates to children with disability. Under the objects of the bill, which is clause 3.3, article 23 could be referred to there as a direct link to children with disability.

CHAIR —Do you see this position as better being a standalone statutory authority or part of the Australian Human Rights Commission?

Dr Baker —I do not have a strong view about that. I think it is important—and the bill does spell this out—that the commissioner would be independent, but I have no particular view on where it should be located.

CHAIR —But you say that you do not think it should be required to prepare our report to the United Nations Convention on the Rights of the Child.

Dr Baker —No.

CHAIR —So you would see that as still being part of the Attorney-General’s role; where as this person may well comment on that report?

Dr Baker —Yes, that is the way I would see it working. My understanding is that these reports are prepared by the Attorney-General’s Department and often another department like FAHCSIA would be involved. It is a report on behalf of the Australian government. Given the importance of the independence of the commissioner, to provide input to that report is more appropriate than to prepare that report.

Senator HANSON-YOUNG —The NDS of course are not the only organisation that has specifically asked for children with disabilities to be directly mentioned in the bill. For all the reasons you have outlined in terms of particular vulnerabilities of children with disabilities, I think a specific reference—perhaps as you have said, in the objects of the bill—would fit. How do you see the role of this federal commissioner as opposed to the state and territory existing commissioners and guardians? Do you see that as a problem—that there would be a federal commissioner that would have their jurisdiction and the states and territories be left to what they do best?

Dr Baker —Clearly there is risk here of duplication. I am aware of those risks and they would need to be managed well. However, I think there are also some opportunities that could arise from the establishment of a Commonwealth children’s commissioner that do not exist at state level. For example, there are emerging policy developments at a national level, such as the national framework for child protection, but also programs delivered by the Commonwealth government, such as the Helping Children with Autism package and the more recent Better Start for Children with Disability early intervention package—these are packages designed to assist children with a disability. There is also an opportunity for a Commonwealth commissioner to look across states and territories, compare what they are doing and see things that may be working well in one state that other states are not doing and use that. It could be a mechanism for disseminating best practice across Australia.

Senator HANSON-YOUNG —How would you see this role working with the federal commissioner for people with disabilities, where that is currently located within the Human Rights Commission? How would you see them working together, specifically in terms of children with disabilities?

Dr Baker —The role of the federal disability commissioner is fairly restricted. The commissioner administers the Disability Discrimination Act. They can respond to individual complaints but cannot initiate complaints. They can conduct inquiries. It is a quite restricted role. I think this would have a broader brief. However, clearly the two roles need to work well together.

Senator HANSON-YOUNG —Picking up on the issue of vulnerability of children with disabilities, you said in your opening statement that children with disabilities are at higher risk of abuse. Is that within the home, within state based care, within educational institutions? Could you expand on that vulnerability for me?

Dr Baker —The research I have in mind is a meta-analysis of many studies that have been done in this area over decades. The patterns certainly show that, in both contexts, children are at greater risk, both in the home and outside the home.

Senator HANSON-YOUNG —When you talk about children with disabilities, I imagine that you are also including children who develop over time various mental health concerns. Linked to that is the impact of appropriate services and protection for children who are sufferers of torture and trauma. How much does your organisation work in those areas?

Dr Baker —We are interested in disability however it arises—so, whatever the cause. Those causes may be birth, accident or circumstances which put sustained mental stress on a person.

Senator HANSON-YOUNG —In terms of the vulnerability of children in state care, immigration detention centres or juvenile justice detention centres, perhaps they were not classified as children of vulnerability when they entered those facilities, because of their abilities. Would you envisage that, if an object of this bill were to advocate specifically for children with disabilities, they would be captured?

Dr Baker —Yes. I think it would be clear that the concern is for the child with a disability, regardless of how the disability was acquired.

Senator BARNETT —I think most of the questions have been asked that I wanted to put to Dr Baker, but I just want to put this one back to you again with regard to the duplication concern and perhaps potential waste. I know you have a background focusing on those areas in the past. What would you say about the concerns expressed by our first witness today in particular about the possible duplication of the roles between state and territory commissioners and a Commonwealth commissioner?

Dr Baker —As I said, I think this is rightly a concern; however, I think it can be managed. The respective roles would need to be carefully mapped out. I think there are advantages in having a Commonwealth commissioner who can, if you like, oversee systems. One advantage that I have already referred to is the opportunity to identify things in states that are happening well and things that are not happening well, and to use the position to facilitate exchange of best practice and avoidance of worst practice across jurisdictional boundaries. There is a trend both within children’s policy and disability policy toward greater national consistency. In general, this is a good trend and this role could help facilitate that.

Senator BARNETT —Do you think these state and territory commissioners in their relative jurisdictions are adequately servicing the needs of people with disabilities or is there room for improvement at that level?

Dr Baker —The state jurisdictions in general?

Senator BARNETT —Yes.

Dr Baker —State governments—I think, as the Productivity Commission reported recently in its draft report on disability, support and care around Australia, that the current system is in a state of disrepair. It is unfair—these are the words of the commission—underfunded, fragmented and gives too little choice to individuals and their families. I think there is fundamental reform needed at all levels of the disability services system.

Senator BARNETT —Are you aware of Eskleigh Home for people with disabilities in Northern Tasmania with some 42 beds and their funding crisis that is currently a concern for Tasmania?

Dr Baker —I am not specifically aware of that circumstance, but that situation of funding crisis, unfortunately, is all too frequent around Australia.

Senator BARNETT —It is fair to say that the Commonwealth funds are at 28.9 per cent of the disability funding service that is provided to the state and territory governments.

Dr Baker —That sounds about the right figure, yes.

CHAIR —We do not have any other questions, so, Dr Baker, thank you very much. Thank you very much for your submission and also your availability this afternoon to come to the committee personally. It is much appreciated.

Dr Baker —You are welcome.

Proceedings suspended from 2.18 pm to 2.38 pm