In response to recommendations arising from the Universal Periodic Review, Australia’s National Human Rights Action Plan Exposure Draft (NHRAP Exposure Draft) includes an action to explore options for establishing a National Children’s Commissioner. However, it is unclear whether this action will include recognition of the particular susceptibility of children with disability to human rights violations. As at March 2012, the NHRAP Exposure Draft has not been finalised or endorsed by Australian governments.
Australia does not have a comprehensive national policy framework for children that articulates how the rights of children, including children with disability should be implemented, monitored and promoted across all jurisdictions. The UN Committee on the Rights of the Child (CRC Committee commented on this omission in 2005).46 The National Framework for Protecting Australia’s Children is only focused on child protection against violence, abuse and neglect, not on all human rights issues. (See also Article 16)
The CRC Committee expressed its concern “about the paucity of information on disabled children, especially when it comes to data on disabled indigenous children, alternative care for children with disabilities and children with disabilities living in remote or rural areas”.47 The CRC Committee recommended that Australia “adopt a consistent national approach to the collection of data on children with disabilities”,48 however this has not occurred.
Disability Services Standards, which exist under disability services legislation in all States and Territories provide guiding principles for quality disability service provision. However, these Standards are adult focussed and do not address principles relating to the ‘best interests of the child’, the evolving capacity of children to make decisions or age-appropriate services and supports.
The principle that the best interests of the child be a primary consideration is part of Australian policy and law but is not always effectively applied, or is applied inconsistently to children and young people with disability in different States and Territories across Australia.
Human rights violations and the failure to consistently apply the ‘best interests’ principle based on human rights obligations will be considered further in relation to right to life of newborn children with disability (discussed in Article 10), the over representation and treatment of young people with disability in the juvenile justice system (discussed in Articles 13 and 15); restrictive practices used in schools (discussed in Article 15); violence, exploitation and abuse (discussed in Article 16); forced sterilisation of children with disability (discussed in Article 23); relinquishment of children with disability (discussed in Article 23) and the right to education (discussed in Article 24).
