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12 May 2021

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability GPO Box 1422, Brisbane, QLD 4001 DRCEnquiries@royalcommission.gov.au Dear Commissioners

RE: Issues paper: violence and abuse of people with disability in the home

The Office of the Children’s Commissioner (the OCC) welcomes the opportunity to make a submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). The OCC is deeply concerned about the experiences of children with disability in the Northern Territory. The OCC, as set out in the enclosed submission, would like to discuss concerns pertaining to the following themes:

- First Nations children with disability - Children with disability and child protection experience - Children with disability in residential care - The National Disability Insurance Scheme - Laws, policies and practice in relation to children with disability living in youth detention

and bail support accommodation - Data in relation to children with disability.

The OCC would like to thank the Royal Commission for the opportunity to make a submission

to the issues paper. Please do not hesitate to contact Clare Patterson, Strategy and Rights

Officer, on 08 899 6074 or via email at occ@nt.gov.au if you have any further queries

regarding this submission.

The OCC submission is not confidential and may be published.

Yours sincerely

Sally Sievers A/Children’s Commissioner

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Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Background The Northern Territory Office of the Children’s Commissioner (OCC) is a small independent office whose objectives are to ensure the safety and wellbeing of vulnerable children and to promote continuous improvement and innovation in policies, practices and services relating to the safety and wellbeing of vulnerable children. Jurisdiction of the OCC includes children with disability, in care and protection, in youth detention, in residential care and in bail support accommodation.1 The full functions of the Children’s Commissioner are set out in section 10 of the Children’s Commissioner Act 2013 (NT).2 The OCC acknowledges that the use of the term children in this submission also refers to young people, and that cultural lore(s) across the Northern Territory may recognise young people as adults earlier than the Australian legal definition of 18 years. This submission seeks to respond to the Royal Commission issues paper ‘Violence and abuse of people with disability in the home’ and highlight some of the issues facing children with disability in the Northern Territory, subject to terms set out in question 7(a-e).3 The OCC would like to reiterate the veracity of what the Royal Commission has already raised around the complexity of preventing violence and abuse towards people with disability. These issues multiply in the Northern Territory, and more so for children with disability. The OCC aims to reinforce in this submission that solutions must be multifaceted, respectful and sustainable. The United Nations Convention on the Rights of the Child recognises that children with disability require special care in order to enjoy a full and decent life in conditions that promote self-reliance and facilitate their active participation in the community.4 Too often, children with disability are failing to have their rights fulfilled in the Northern Territory in relation to their safeguards, treatment and participation in child protection and youth justice domains. The OCC stresses the importance of balancing the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child to ensure that children have their best interests prioritised, are safe and able to participate and live with dignity.

1 Children’s Commissioner Act (2013) pt 1(4). 2 Children’s Commissioner Act (2013) pt 3(10). 3 Commonwealth, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Issues paper – violence and abuse of people with disability at home (2020) 9 <https://disability.royalcommission.gov.au/publications/violence-and-abuse-people-disability-home>. 4 United Nations, Convention on the Rights of the Child, General comment 9: the rights of children with disabilities, CRC/C/GC/9 (2006) <https://www2.ohchr.org/english/bodies/crc/docs/GC9_en.doc>.

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First Nations children with disability Poor outcomes for Aboriginal children across the Northern Territory in education, health, youth justice and in child protection clearly demonstrate the effects of unassessed or inadequately supported disability, lack of disability support services across the Northern Territory and epigenetics of poverty and intergenerational trauma. The OCC raises serious concerns in the Northern Territory about access to quality and timely disability support services. Aboriginal children make up 26% of the Northern Territory child population.5 It is well documented that Aboriginal children experience poorer socio-economic and health outcomes than their non-Indigenous counterparts.6 The disadvantage is evident in the disproportionate representation of Aboriginal children experiencing FASD, hearing loss, poor education outcomes and poor mental health.7 Intergenerational trauma and poverty adversely affect Aboriginal children’s fulfilment of their human rights and equal opportunity in life.8 Aboriginal and Torres Strait Islander peoples account for 30% of the Northern Territory’s population. More than 78% of this population live in remote or very remote areas of the Northern Territory.9 Research conducted by AIHW shows people living in more rural and remote areas are more likely to have high rates of health risk factors and that specialist targeted outreach to these areas can improve early intervention and coordinated care.10 These challenges are particularly pertinent to the Northern Territory when combined with inadequate cultural and community responsiveness for children with disability and Aboriginal children with disability. Given this environment, there is increased opportunity for abuse and neglect of children and young people with disability to occur. In the Northern Territory, Aboriginal children with disability face disproportionately high risk of violence and abuse in the child protection, youth justice and education systems.11 Poor 5 Australian Bureau of Statistics, Estimated resident Aboriginal and Torres Strait Islander and non-Indigenous populations, states and territories, single year of age – 30 June 2016 (2016) <https://www.abs.gov.au/statistics/people/aboriginal-and-torres-strait-islander-peoples/estimates-aboriginal-and-torres-strait-islander-australians/jun-2016/3238055001do007_2016.xls>. 6 Commonwealth, Closing the Gap Report 2020 7 http://www.amsant.org.au/wp-content/uploads/2019/08/190719_AMSANT-Submission_Expenditure-on-Children-in-the-NT-1.pdf 8 https://ctgreport.niaa.gov.au/overview 9 Australian Bureau of Statistics, Census population and housing: counts by remoteness area (2016) <https://www.abs.gov.au/statistics/people/aboriginal-and-torres-strait-islander-peoples/census-population-and-housing-counts-aboriginal-and-torres-strait-islander-australians/latest-release#counts-by-remoteness-area>. 10 Australian Institute of Health and Welfare, Rural and Remote Health (2020) <https://www.aihw.gov.au/reports/australias-health/rural-and-remote-health>. 11 Australian Institute of Family Studies, Child Protection and Aboriginal and Torres Strait Islander Children (2020) <https://aifs.gov.au/cfca/publications/child-protection-and-aboriginal-and-torres-strait-islander-children>;

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understanding of cognitive impairment, and how this affects comprehension, reason, impulse control, judgement, learning and memory, contributes to the systemic racism experienced by Aboriginal children in these environments. Cycles of disadvantage; poverty, family and domestic violence, disengagement from school, risk taking behaviour, missed or undiagnosed health issues and failures to provide wrap around supports place aboriginal children with disability in the Northern Territory at great risk. Children with disability and child protection experience Children with disability can be particularly vulnerable to harm and at an increased risk of harm in out-of-home care and residential care.12 The Royal Commission into Institutional Responses to Child Sexual Abuse found that children with disability are over-represented in out-of-home care and they are more vulnerable to a range of maltreatments.13 During 2019-20, over 80% of children in care were recorded as having ‘no disability’.14 Territory Families, Housing and Communities (TFHC) acknowledge that current figures are not an adequate reflection of the level of disability experienced by children in care. TFHC advise that the ‘no disability’ indicator in the Community Care Information System (CCIS) is selected for where it is known that a child does not have a disability, but also for where disability status is unknown or has not yet been assessed. Working within a system that does not enable disaggregation of ‘no disability’ from ‘no recorded disability’ makes it difficult to understand the prevalence of children with disability in care. Of the data that did capture disability for children in out-of-home care, as at 30 June 2020, there were 199 children with disability in care in the Northern Territory and over 80% of this cohort were Aboriginal. Of concern, almost 80 children and young people in care did not have an active, completed National Disability Insurance Scheme (NDIS) care plan. Almost 60% of children with disability in care have intellectual/learning disability. Twenty percent of children in care did not have their specific disability recorded or adequately described. TFHC records indicate that children with disability in out-of-home care are recorded in the following categories: intellectual/learning, physical diverse, psychiatric, sensory/speech, no disability, not stated/inadequately described.

Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory (2016) vol 2-3; Curtin University, Bankwest Curtin Economics Centre, The Early Years: Investing in our future – Focus on Western Australia Report Series No.13 (2020) 90 <https://bcec.edu.au/assets/2020/08/BCEC-The-Early-Years-Investing-in-Our-Future-Report-2020-270820.pdf>; Menzies School of Health Research, International Journal of environmental research and public health, Enhancing social and emotional wellbeing of Aboriginal boarding students: Evaluation of a social and emotional learning pilot program 17, 771 (2020). 12 Australian Institute of Family Studies, Child Family Community Australia, Therapeutic residential care services in Australia, paper 52 (2019) <https://aifs.gov.au/cfca/sites/default/files/publication-documents/cfca-paper-52_therapeutic_residential_care_services_in_australia.pdf>. 13 Commonwealth, Royal Commission into Institutional responses to child sexual abuse (2017) vol 12, 15 <https://www.childabuseroyalcommission.gov.au/>. 14 Office of the Children’s Commissioner, Annual Report 2019-2020 (2021) 34 <https://occ.nt.gov.au/publications>.

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The OCC welcomes the establishment of a TFHC Disability and Development Team that seeks to provide support and mentoring for case managers working with children with disability and developmental concerns. In addition, this unit aims to assist case management staff to navigate NDIS in order to facilitate effective service participation; as well as implementing training for child protection staff on understanding and recording disability within the relevant data systems. The OCC raises its concern over the capacity of a small work unit to offer support to all case managers in completing NDIS referrals and working with children with disability and their families on NDIS and TFHC care plans. Upskilling case managers to have a broader understanding of what their roles and obligations are in implementing a child’s plan is pivotal to increasing the safety and wellbeing of children with disability in the child protection system. plan. The OCC understands that a number of risk factors contribute to children with disability experiencing violence and abuse in care. In the Northern Territory, 40% of children with disability in care live in purchased home based care, 33% in foster care and only 8% in kinship placements. Child protection services should strengthen the capacity of parents and carers to understand the functional needs and supports required by children in their care, with specialised support provided particularly to parents who also experience disability. TFHC do not currently record disability status for parents or carers in contact with the child protection system, so the extent to which this impacts children’s involvement with the child protection and out-of-home care systems is unknown. As a result of a number of complaints received by the OCC, there are concerns about the provision of adequate education and training for kinship and foster carers regarding disability and complex behaviours, which can result in children experiencing an increased risk of emotional and physical harm. The assessment and ongoing training and support offered to foster and kinship carers in out-of-home care when caring for children with disabilities lacks any formal assessment process. Education for carers is often limited to the foster carer training (not child specific) or identified reactively when carers or children are struggling to maintain the placement. The long-term support, training and assessment of foster and kinship carers to meet the needs of children in their care are rarely considered or recorded, and eventually contribute to, placement instability or breakdown. The experiences of children with disability in the Northern Territory are diverse and this demands responses and supports that are holistic, co-located and culturally appropriate. In the Northern Territory, the impact of intergenerational trauma for Aboriginal children, homelessness, family and domestic violence and poverty result in children with disability who live in these circumstances as some of the most vulnerable to violence, abuse and neglect.15 The OCC asks the Royal Commission to consider the unique circumstances of children with disability in the Northern Territory when making recommendations. The range of disabilities,

15 Australian Institute of Health and Welfare, Australia’s Children, Aboriginal and Torres Strait Islander Children (2020) < https://www.aihw.gov.au/reports/children-youth/australias-children/contents/aboriginal-and-torres-strait-islander-children>.

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and at times their co-existence (some of which include global delay, FASD, autism, PTSD, hearing loss, cognitively delays), demands a multi-disciplinary response that foregrounds education and training for foster and kinship carers on the intersectionality of disability and complex behaviours. A coordinated and funded multi-disciplinary response would mean a reduction in child psychology/medical assessment delays that hinder child protection and youth justice services from supporting children with behavioural or emotional disorders. Proactive measures could assist services to be more trauma-informed and increase placement stability for children in out-of-home care, family group homes and residential care. The OCC Own Initiative Investigation report (June 2020) highlighted children in out-of-home care with some disability types are more vulnerable to sexual exploitation.16 Often, these children are isolated from family and community as a means of protection from harm, rather than implementing safety measures such as supervision and education to maintain a level of family and cultural contact. The report demonstrates that staff working with children with disability use isolation as a means to prevent children from having access to their families. Findings from the report note a lack of assessment and safety planning prior to the placement of children, lack of recording and investigation of incidents of abuse or harm by service providers, and a lack of awareness and engagement around protective processes to reduce risk of harm. Children with disability in residential care A significant number of children who live in residential care facilities have disability, or are at a higher threshold for special care.17 Nationally, children with disability living in residential care are often a product of a breakdown in funding and support for accommodation.18 The NDIS have made some progress in this area over the last year.19 However, it is important NDIS progress coincides with safeguarding children’s rights, better understanding of impairment, cultural health and quality assurance to ensure children with disability do not experience further abuse or neglect while in care. The OCC’s 2019 Residential Care in the Northern Territory monitoring report found unsatisfactory compliance by TFHC with policies and procedures around the standard and consistency of care planning and case management, including the facilitation of children’s

16 Office of the Children’s Commissioner, Own Initiative Investigation Report – Abuse in care (2020) <https://occ.nt.gov.au/publications>. 17 Australian Institute of Family Studies, Child Family Community Australia, Therapeutic residential care services in Australia, paper 52 (2019) 9 <https://aifs.gov.au/cfca/sites/default/files/publication-documents/cfca-paper-52_therapeutic_residential_care_services_in_australia.pdf>. 18 Australian Federation of Disability Organisations, Issues for children with disability in out-of-home care (2019) <https://www.afdo.org.au/wp-content/uploads/2019/08/AFDO-Children-with-Disability-in-Out-of-Home-Care-August-2019.docx>. 19 National Disability Insurance Scheme, Participant service improvement plan 2020-21 (2020) <https://www.ndis.gov.au/media/2616/download>; Office of the Children’s Commissioner, Residential Care in the Northern Territory – Monitoring Report (2020) <https://occ.nt.gov.au/publications>.

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access to the NDIS. Half of the care plans reviewed did not comply with expected standards as set out by TFHC. The OCC found care plans lacked sufficient details and genuine measures to ensure accountability and responsibility to meet the needs of the child.20 The OCC recommends regular, formal and child friendly opportunities be available for children in residential care to partake in decisions affecting their lives. Meeting this standard is particularly important for children with disability who live in residential care as they often have complex health and developmental needs. Frequent and meaningful contact with case managers is one way to ensure children with disability have their voice heard and included in their lives. The OCC’s 2019 Residential Care monitoring found that children with limited ability to communicate, and those with limited independence, were less likely to receive regular and frequent visits from their case managers. It is necessary for staff working with children with disability to receive regular disability-focused training to adequately communicate with, understand and manage the children in their care. A full list of recommendations relating to the health and disability needs of young people in residential care in the Northern Territory are on the OCC website.21 National Disability Insurance Scheme (NDIS) The Aboriginal Medical Services Alliance Northern Territory (AMSANT) surmise the NDIS landscape as:

“A potential 48,000 people living with disability are expected not to be eligible for support under the current scheme. 53% of current plans are for Aboriginal or Torres Strait Islander people. Almost 30% of plans are for people with CALD backgrounds. There is only a 56% utilisation rate in the Northern Territory for already existing plans. 76% of participants require support coordination, compared with 25% nationally.”22

In the Northern Territory as at 31 December 2020, almost 50% of NDIS participants are aged 0-18 years.23 In addition to these children there are many more experiencing levels of functional disability who either do not have the supports required to navigate the NDIS application process, or who do not qualify for NDIS but require some level of support. It is not clear how these children can have their support needs met outside of the NDIS support system.

20 Office of the Children’s Commissioner, Residential Care in the Northern Territory – Monitoring Report (2020) <https://occ.nt.gov.au/publications>. 21 Office of the Children’s Commissioner, Residential Care in the Northern Territory – Monitoring Report (2020) <https://occ.nt.gov.au/publications>. 22 Aboriginal Medical Services Alliance Northern Territory, AMSANT submission in response to NDIS thin markets project discussion paper (2019) <http://www.amsant.org.au/wp-content/uploads/2019/08/190731_AMSANT-Submission_NDIS-Thin-Markets.pdf>. 23 There are 147 children with initial supports in the ECEI gateway at the end of December 2020. National Disability Insurance Scheme, NDIS Quarterly Report to Disability Ministers 31 December 2020, Table M.14 (2020) 482 <https://www.ndis.gov.au/media/2940/download>.

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Challenges relating to access to health and support services are not new to the Northern Territory. The large land mass and the dispersed population make it difficult for service providers to staff, travel and work in communities where demand is disproportionality high.24 Commitment is required to continue to build the capacity of communities to manage and provide services locally where there are thin or non-existent service markets in the disability sector.

The rollout of the NDIS in the Northern Territory is yet to yield results from early interventions and supports to children and families who need it most.25 Early intervention supports are only offered in Darwin, Palmerston and Litchfield.26 Delays in NDIS administration, uncertainty about eligibility and lack of clarity about available supports hinder the potential success of this scheme in the Northern Territory. Disadvantages experienced by children with disability and their families/carers involve development of plans that are unsuitable to the Northern Territory landscape, reviews of plans taking too long and errors in the rollover of plans (i.e changes from remote to urban).

Without stronger investment in the disability sector in the Northern Territory, the future of the NDIS is bleak. The crux of NDIS to prioritise choice for the person with disability is an incompatible model with the Northern Territory, as its thin markets do not allow for robust service choice or delivery. A focus on rural, remote or very remote areas, which make up the Northern Territory landscape, is critical to create the diverse and quality driven market that is required.

Recent proposed changes to the NDIS introducing mandatory assessments in order to access the scheme are problematic for children with disability in the Northern Territory, specifically children with disability living in out-of-home care and living in detention centres. The OCC is concerned the three hour assessments will impact children with disability unfairly as they will not allow for a trauma-informed and child-friendly interaction, will not capture the child’s complex needs or circumstances, will not be culturally safe and will generate decisions that cannot be appealed. In addition, support for NDIS participants will be further restricted in rural and remote areas by limiting those contracted to do the assessment from providing other NDIS services (for example a reduction in numbers of qualified therapists).27

Poor levels of safety, income, housing and education affect some remote communities in the Northern Territory from realising their basic rights needed to form a strong foundation for

24 National Disability Services, State of the Disability Sector Report 2017 (2017) 36 <https://www.nds.org.au/images/news/State_of_the_Disability_Sector_report_2017.pdf>. 25 Curtin University, Bankwest Curtin Economics Centre, The Early Years: Investing in our future – Focus on Western Australia Report Series No.13 (2020) 90 <https://bcec.edu.au/assets/2020/08/BCEC-The-Early-Years-Investing-in-Our-Future-Report-2020-270820.pdf>. 26 National Disability Insurance Scheme, Northern Territory, Find your NDIS partner in the Community (2020) <https://www.ndis.gov.au/media/2469/download>. 27 Disability Advocacy Network Australia, Joint statement on the Australian Government’s planned reforms to the NDIS (2021) <https://www.dana.org.au/ndis-concerns/>.

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health equity.28 Ensuring that children with disability who grow up in poor living conditions have equitable access to, and effective delivery of, specific NDIS supports is difficult and expensive. A casualised workforce and a lack of awareness on how to work with children intensifies barriers to effective NDIS service delivery.29 The NDIA planning and staffing allocation needs sufficient and appropriately distributed funding to wholly and sustainably resource the Northern Territory’s expansive area to cater for transport, readily available specialist expertise and assistive equipment in remote or very remote areas equal to what is available in metropolitan areas.

The role of Aboriginal Community Controlled Health Organisations in disability service provision in the Northern Territory is important and complex. NDIS in the Northern Territory must be flexible to support the work of Aboriginal Community Controlled Health Organisations.30 Place-based and collaborative approaches, culturally safe capacity building and evidence-based change are still required in community despite the reform effort. It is unreasonable to burden a small, locally based Aboriginal Community Controlled Health Organisation with administrative responsibility to multiple government levels without strengthened and stable funding. The OCC would like to draw the Royal Commission’s attention to the serious issues with NDIS service provision in communities, particularly remote communities in the Northern Territory. In 2019-2020, $153 million of NDIS funding was unutilised in the Northern Territory and $11.9 million in NDIS funding unutilised in APY/NPY lands.31 Just 4 out of 500 registered Specialist Disability Accommodation providers are active in the Northern Territory.32 Remote or very remote communities in the Northern Territory are typically small in population and NDIS service providers are less likely, if at all, to travel out to community for one or two children. Many service providers report the costs of service delivery in remote areas surpass remote loading provisions in the NDIS. The burden to ensure NDIS access and support transfers to carers/families of children with disabilities who often do not have the means to travel. This means some children receive core coordinated funding and others do not. For example, the OCC is aware of circumstances for a child in a remote community who is hearing impaired, cognitively delayed and approved for NDIS services in 2019. However, a delay in a service agreement has contributed to the increased levels of risk for the child who suffers volatile substance use, is homeless and has little food security. This intersection of disadvantage and

28 Australian Institute of Health and Welfare, Rural and remote health (2019) <https://www.aihw.gov.au/getmedia/838d92d0-6d34-4821-b5da-39e4a47a3d80/Rural-remote-health.pdf.aspx?inline=true>. 29 OCC meeting with NT Friendship and Support (February 2021). 30 Aboriginal Medical Services Alliance Northern Territory, AMSANT submission in response to NDIS thin markets project discussion paper (2019) <http://www.amsant.org.au/wp-content/uploads/2019/08/190731_AMSANT-Submission_NDIS-Thin-Markets.pdf>; National Disability Insurance Scheme, NDIS draws on local expertise in remote APY lands (2014) <https://www.ndis.gov.au/news/394-ndis-draws-local-expertise-remote-apy-lands>. 31 OCC meeting with Susan Burns, NT Manager NDS, Snapshot (February 2021). 32 OCC meeting with Susan Burns, NT Manager NDS, The NDS in remote areas (February 2021).

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poor service response can have devastating results, as evidenced in a number of Northern Territory coronials.33 Gaps in cross cultural training and knowledge seriously affect the reception of support services in communities for families and their children. It is increasingly difficult to foster trust between families and service providers resulting in children not attending therapies. In addition, some parents, families or carers do not have the means or capacity to advocate for assessments for their child or do not understand how an assessment will affect their child ascertaining their rights. The NDIS system is difficult to navigate for families and carers without taking into account the challenges faced by those with lower literacy levels and those whose first language is not English. Furthermore, there is a lack of assessment, particularly in Aboriginal communities, due to stigma and negative stereotyping, resulting in fewer families accessing the supports they need. There is no peak body for children and young people in the Northern Territory, nor is there adequate advocacy funding to assist children and families living with disability. These gaps limit the opportunity for required advocacy on individual and strategic issues to improve disability service provision across the Northern Territory. AMSANT plays a key role in advocating and supporting services to navigate the NDIS and assist them to become NDIS approved providers where necessary. To continue this work in line with other states and territories, AMSANT requires dedicated funding.34 Laws, policies and practice in relation to children with disability Youth detention Children with disability who have child protection experience face compounded challenges in the Northern Territory. As at 30 June 2020, 50% of children under a care and protection order who also have a youth detention order have disability. Further, 100% of this cohort are Aboriginal children. Research shows there is a high prevalence of mental health disorders among children and young people who have child protection or detention experience.35 It is impossible to talk about abuse and neglect of children with disability in child protection without discussing the interconnectedness with youth justice. The Northern Territory requires considerable focus towards preventing children with disability from coming into contact with

33 Inquest into the deaths of Fionica Yarranganlagi James, Keturah Cheralyn Mamarika and Layla Leering (2020) NTLC 022 68 <https://justice.nt.gov.au/__data/assets/pdf_file/0009/957258/D02392017-James-Mamarika-and-Leering.pdf>; Inquest into the deaths of Master W, Miss B and Master JK (2020) NTLC 020 < https://justice.nt.gov.au/__data/assets/pdf_file/0005/957254/D01852019-Master-W,-Miss-B-and-Master-JK.-docx.pdf>. 34 Aboriginal Medical Services Alliance Northern Territory, AMSANT submission in response to NDIS thin markets project discussion paper (2019) <http://www.amsant.org.au/wp-content/uploads/2019/08/190731_AMSANT-Submission_NDIS-Thin-Markets.pdf>. 35 Northern Territory Department of Health, Report on the review into forensic mental health and disability services (2019) <https://apo.org.au/sites/default/files/resource-files/2019-09/apo-nid257306_1.pdf>; AIHW, Australia’s Children: Children under youth justice supervision (2020) <https://www.aihw.gov.au/reports/children-youth/australias-children/contents/justice-and-safety/children-under-youth-justice-supervision>.

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the youth justice system. Decreasing the high levels of risk for children with disability from coming into contact with the justice system, and subsequently keeping them out of the youth justice system, requires inclusive and flexible education, stable and supportive home environments and equipped and educated policy and community responses. Embedding and building on recommendations from the wealth of research and reports over the last decade requires genuine commitment and thorough implementation. Progress and evaluation, especially for the Northern Territory, must be viewed through a human rights and culturally sound lens. While minimal exceptions exist, NDIS support does not extend to a child living in a youth detention centre.36 Currently, the NDIS is not responsible for the continuation of or day-to-day care and support needs of a person in custody, instead assuming that the criminal justice system services are adequate – including appropriate communication and engagement mechanisms. The OCC would like to impress upon the Royal Commission the need to extend NDIS responsibility to children who are living in youth detention centres in the Northern Territory, regardless if they are on remand or sentenced. It is essential the NDIS have a mechanism to ensure continuity of supports between the NDIS funded supports received in community and the supports available while in custody. Continuity mechanisms need to prevent delays around police and youth justice clearances for NDIS staff to work in the centre. Until children, and children with disability, are in a non-custodial setting, they cannot consistently access the key support workers or NDIS plans. Research suggests there is a strong link between the prevalence of Foetal Alcohol Spectrum Disorder (FASD) and early life trauma experienced by Aboriginal children in youth detention. The OCC in its submission to the Senate Inquiry into the Effective Approaches to Prevention, Diagnosis and Support for FASD outlines the complexity around NDIS, FASD and requirements for effective supports for children in the Territory.37 NDIS plans must provide specialised services that are readily available, un-encumbered by lengthy waitlists of over a year. Staff, especially youth justice staff, police and court staff, working with children with FASD must be provided training to become familiar with the operation of the NDIS and maximise its effectiveness. The Royal Commission into the Protection and Detention of Children and Young People in the Northern Territory found that screening for FASD among children in youth detention is not occurring despite the probability they are likely to be affected. Recommendations address the need for consistent screening for children entering detention

36 Definition of a child in custody - a person on bail, a person under a community based order that places controls on the person to manage risks to the individual or to the community, a former prisoner on parole, or a person in home detention. National Disability Insurance Scheme, Justice, Planning operational guideline – Deciding to include supports in a participants plan (2019) <https://www.ndis.gov.au/about-us/operational-guidelines/planning-operational-guideline/planning-operational-guideline-deciding-include-supports-participants-plan>. 37 Parliament of Australia, Senate Standing Committee on Community Affairs, OCC submission to Effective approaches to prevention, diagnosis and support for Fetal Alcohol Spectrum Disorder Inquiry (2020) 32 <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/FetalAlcoholSpectrumDi/Submissions>.

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and out-of-home care.38 To date, these recommendations have not been implemented which is of significant concern. Supporting children with disability while going through the court system and/or living in detention means proactively taking responsibility to ensure that children have the disability supports they need – such as use of interpreters for children with disability whose first language is not English, child-friendly and culturally appropriate legal documents (bail conditions)39, accessible and child-sensitive complaints processes. Discontinuation of supports for children with disability upon admission to youth detention centres is not only a breach of youth justice policies but also generates avoidable service gaps that have detrimental long-term effects.40 One such service gap is appropriate and specific alcohol and other drug services for children, which are not adequately available in either in youth detention facilities or for children living in the community. Danila Dilba Health Service (DDHS) delivers services in Don Dale Youth Detention Centre. DDHS are responsible for therapeutic group work, one-on-one support, and other health/medical services, including a forensic child and adolescent psychiatrist. DDHS, whose service is trauma-informed and culturally appropriate, advocate for better transition planning to include simple instructions like medications the child will need upon exiting youth detention centre. Health support that is both culturally and clinically competent, with a focus on prevention as well as at-risk circumstances, is yet to be realised in the Northern Territory.41 Specialised Assessment and Treatment Services (SATS) and case managers operating in youth detention centres in the Northern Territory raise concerns over the movement of young people between Alice Springs and Darwin and the difficulties this creates in relation to administration of NDIS plans.42 Construction of a new youth detention centre in Darwin is underway and with this comes an opportunity to develop a new therapeutic model of care. DDHS articulate the current behaviour management scheme – the centre cycle program – requires a formal and independent evaluation to address concerns around the appropriateness of the scheme, and unintended consequences, for children with cognitive or developmental impairments of trauma. DDHS notes ‘point and level’ behaviour management strategies that are not appropriately tailored to meet the needs of children with complex health, mental health, developmental needs, FASD, hearing and speech impairments, are arguably damaging, discriminatory and ineffective.

38 Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (2017) 9, 40, 50. 39 North Australia Aboriginal Justice Agency, Children’s Court Conference, Congress Child and Youth Assessment and Treatment Service presentation, Unpacking multidisciplinary reports: strategies for working with youth people (2021). 40 Youth Justice Act (2005) pt 3 (1-6). 41 T. Westerman, Australian Psychologist, vol 45 n 3, Engaging Australian Aboriginal youth in Mental Health Services (2010) 4 <https://indigenouspsychservices.com.au/wp-content/uploads/2019/06/Engaging-Australian-Aboriginal-Youth-in-Mental-Health-Services-2010.pdf>. 42 Office of the Children’s Commissioner, Don Dale Youth Detention Centre Monitoring Report June 2020 (2020) 16 <https://occ.nt.gov.au/__data/assets/pdf_file/0005/899456/DDYDC-Monitoring-Report-June-2020.pdf>.

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Without timely assessments, providing wrap-around targeted supports to rehabilitate youth while living in detention is impossible. Opportunities to develop and implement adequate TFHC care plans for those in detention does not occur, resulting in further neglect and trauma. A therapeutic and trauma-informed behaviour management scheme with timely assessments and individualised plans could meaningfully engage children as they live in youth detention. The OCC’s 2020 Youth Detention Centre monitoring found mental health responses for ‘at risk’ children and young people lacked genuine understanding of trauma at a procedural level, including the impact of separation practices and inconsistency between incident reporting.43 The OCC recommends TFHC develop and implement a therapeutic model of care with the detention centres. A holistic model of care, properly executed in a purpose built facility will ensure the children in youth detention receive appropriate, disability-specific, trauma-informed supports and ultimately improve their health and wellbeing. A review of forensic mental health and disability services report speaks to the complex environment of health service provision in youth detention. The OCC requests the Royal Commission consider the findings of this work to inform the discussion relating to risk of violence and abuse of children with disability in a youth justice environment.44 Remand and bail supported accommodation The Royal Commission into the Protection and Detention of Children in the Northern Territory found that the principle of detention as a measure of last resort requires that children not be ‘remanded in custody’.45 International conventions support this principle and its translation into domestic legislation.46 Practically, this means that children charged with an offence should a) be granted bail, with appropriate conditions and supports OR b) where there is no other option to protect the community, be remanded to another approved place. Any amount of time in detention is damaging for children, more so for children with disability. Evidence to the Senate Inquiry Effective approaches to prevention, diagnosis and support for Fetal Alcohol Spectrum Disorder suggest that greater than a third of all youth detainees in the NT have

43 Office of the Children’s Commissioner, Don Dale Youth Detention Centre Monitoring Report June 2020 (2020) 7 <https://occ.nt.gov.au/__data/assets/pdf_file/0005/899456/DDYDC-Monitoring-Report-June-2020.pdf>; Office of the Children’s Commissioner, Alice Springs Youth Detention Centre Monitoring Report June 2020 (2020) 7 <https://occ.nt.gov.au/__data/assets/pdf_file/0004/899455/ASYDC-Monitoring-Report-June-2020.pdf>. 44 Northern Territory Department of Health, Report on the review into forensic mental health and disability services (2019) <https://apo.org.au/sites/default/files/resource-files/2019-09/apo-nid257306_1.pdf>. 45 Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children and Young People in the Northern Territory, Final Report (2017) vol 3-4. 46 United Nations, Convention on the Rights of the Child, GA Res 44/25 (20 November 1989) 10; United Nations, Standard Minimum Rules for the Administration of Juvenile Justice ‘The Beijing Rules’, GA Res 40/33 (29 November 1985) 7; United Nations, Rules for the Protection of Juveniles Deprived of their Liberty ‘The Havana Rules’, GA Res 45/113 (2 April 1991) 13.1; Australian Law Reform Commission, Bail and remand (2010) <https://www.alrc.gov.au/publication/seen-and-heard-priority-for-children-in-the-legal-process-alrc-report-84/18-childrens-involvement-in-criminal-justice-processes/bail-and-remand/>; Australian Human Rights Commission, Children’s Rights Report 2016 (2016) 80.

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FASD.47 Over 2019-20, 76% of young people in Don Dale Youth Detention Centre were on remand. This has increased 10% from the previous financial year and is considerably higher than the daily average of 52% five years ago.48 Of concern, the number of children on remand in Alice Springs Youth Detention Centre has remained consistently high, with an increase from 76% to 82% over the last 5 years. These figures suggest that despite the Royal Commission into the Protection and Detention of Children in the Northern Territory reforms, detention continues to be used for children who are denied bail and there remains a lack of appropriate alternatives to detention for this cohort. This issue is likely to be exacerbated by reforms recently passed by the Northern Territory Government in May 2021 removing the presumption of bail for children and strengthening consequences for when children breach bail conditions.49 The OCC raises concerns regarding the suitability of complex bail conditions for children experiencing disability and the manner in which these bail conditions are explained to children in a way they fully understand the consequences. The Royal Commission also found that amending bail conditions and providing accommodation and programs to support children on bail, which were at the time lacking in the NT, would help reduce the overuse of remand in custody.50 Amendments made to the Bail Act 1982 in May 2020 stipulate that a lack of appropriate housing or accommodation must not be used as grounds to deny bail.51 Complicating factors like disabilities, diagnosed behavioural issues, co-morbid mental health and alcohol and other drug addictions, make it increasingly difficult to locate appropriate accommodation in the community for children.52 This level of service immaturity highlights the lack of expertise in the market for complex needs, a lack of community interest to understand the driving causes of at-risk behaviour and decreases opportunities to rehabilitate at-risk children with disability back into the community. Overwhelming evidence and research speak to the negative impact of a detention environment on a child, including children with disability.53 When a child is remanded to a place of detention,

47 Commonwealth, Senate Community Affairs References Committee, Effective approaches to prevention, diagnosis and support for Fetal Alcohol Spectrum Disorder (2021) 2.74 <https://parlinfo.aph.gov.au/parlInfo/download/committees/reportsen/024357/toc_pdf/Effectiveapproachestoprevention,diagnosisandsupportforFetalAlcoholSpectrumDisorder.pdf;fileType=application%2Fpdf>. 48 Office of the Children’s Commissioner, Annual Report 2019-2020 (2021) 54 <https://occ.nt.gov.au/__data/assets/pdf_file/0005/976793/occ-2019-2020-annual-report.pdf>. 49 Youth Justice Legislation Amendment Bill 2021 (NT). 50 Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children and Young People in the Northern Territory, Final Report (2017) vol 2b, 299. 51 Bail Act 1982 (NT) pt 5 div 1 s 24A(4). 52 Northern Territory Department of Health, Report on the Review of Forensic mental Health and Disability Services within the NT (2019) 42 <https://health.nt.gov.au/__data/assets/pdf_file/0007/727657/Report-on-the-Forensic-Mental-Health-and-Disability-Services-within-the-NT.pdf>. 53 Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children and Young People in the Northern Territory, Final Report (2017) vol 3-4; Australian Human Rights Commission, Children’s Rights Report 2016 (2016); Royal Australasian College of Physicians, RACP submission to the Council of Attorneys General Working Group reviewing the Age of Criminal Responsibility (2019); Human Rights Law Centre, Process to raise the age of criminal responsibility – Submission to the Council of Attorneys-General (2020); Northern Territory Social Policy Scrutiny

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the child has restricted access to programs, disrupted education and a punitive experience ahead of sentencing. Remand to a place of detention should not be the default option because of limited supervisory options in community. The introduction of bail support accommodation in the Northern Territory seeks to fulfil this purpose and play a critical role in preventing offending and re-offending. TFHC state that ‘about 75% of young people who utilise youth justice accommodation services, successfully complete their bail order’.54 There are two newly established bail support accommodation services located in Darwin and Alice Springs. They are available to children who are on court orders, good behaviour orders and suspended sentences.55 These new services are still developing in order to provide the ideal environment that would enable a child to adhere to bail conditions, and are only available in the two main service centres of the Northern Territory. The OCC anticipates that building the capacity of bail support accommodation and increasing local availability in more remote areas will strengthen the utilisation of this service. Information sharing between child protection, education, youth justice and NDIS agencies is critical to early planning required for a child’s exit from either youth detention or bail supported accommodation. The Northern Territory needs concentrated investment to develop specialised, rehabilitative and local accommodation options for children denied bail and awaiting sentencing if there is to be serious commitment to the child’s wellbeing and their future. Bail supported accommodation is suspected of being a service that is under-utilised in the Northern Territory, the OCC’s monitoring functions include oversight of Bail Support Accommodation and this report was tabled on 11 May 2021. Data in relation to children with disability

There is currently no available data to indicate the prevalence of children and young people aged 0–18 years with disability in the Northern Territory. The Australian Bureau of Statistics does not consistently collect publically available data for children and young people with disability in the Northern Territory. Two of the existing datasets that collect information on people with disability fail to disaggregate the numbers for those aged between 0–18 years. Without meaningful disaggregation of data for those aged 0–18 years, it is challenging to fully understand the scale of what is required in the Northern Territory.

Committee, Submissions to the Inquiry into the Youth Justice and Related Legislation Amendment Bill 2019 (2019) <https://parliament.nt.gov.au/committees/previous/spsc/85-2019#Subs>. 54 Territory Families Housing and Communities, Youth Justice Accommodation, Bail Support <https://www.youthjustice.nt.gov.au/initiatives/youth-justice-accommodation>. 55 Northern Territory Government, Youth Justice Accommodation (2019) <https://www.youthjustice.nt.gov.au/initiatives/youth-justice-accommodation>.

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In addition to a gap in data specifically about children and young people with disability in the Northern Territory, national research indicates:

“It can be difficult to assess the implications of remoteness to health due to gaps in the availability and coverage of health data in rural and remote areas—and in information available at the local area level. For example, the Australian Bureau of Statistics National Health Survey does not include very remote areas of Australia.”56

It is critical to address the data gaps and inconsistent collection of information relating to children with disability, as it is likely to expose the prevalence of abuse and neglect towards this vulnerable cohort.

Inconsistent reporting requirements and a lack of IT systems between community based organisations limits decision-makers’ understanding of issues affecting children with disability and their families. Further limitations exist to data systems’ interagency compatibility, information sharing and consistent data collection that prevents useful, holistic and targeted reporting to inform policy decisions for children with disability and their families.57

Funding for disability services in the Northern Territory comes from both Federal and territory governments. The Productivity Commission Report into Expenditure on Children in the Northern Territory shows $5 million in Federal funding dedicated to the disability stream. These funds cover disability employment services (NDIS transition), disability and carer service improvement and sector support, disability and care support and community mental health. The report found:

“…systemic problems with the way children and family services were being funded, including; a lack of rigorous tracking of how funding was being spent or the outcomes it was achieving, duplication between service providers, a lack of coordination between the Northern Territory and Australian Governments, and the failure to build the capacity of communities to manage and provide services locally.”58

The Productivity Commission also found that record-keeping about expenditure was not fit for purpose. Much of the data about expenditure was poor, not publically available, incomplete or incomparable across departments. With the full implementation of NDIS in the Northern Territory, the Northern Territory government will no longer fund specialist disability services or basic community care services to those people whose needs are intended to be met by the

56 Australian Bureau of Statistics, National Health Survey (NHS) 2017-2018 (2019) <https://www.aihw.gov.au/reports/rural-remote-australians/rural-remote-health/contents/technical-notes/australian-bureau-of-statistics-national-health-survey>. 57 Territory Families Housing and Communities, Annual Report 2019-2020 (2021) 82 <https://territoryfamilies.nt.gov.au/__data/assets/pdf_file/0003/943923/territory-families-annual-report2019-20.pdf>. 58 Productivity Commission, Expenditure on Children in the Northern Territory (2020) 47 <https://www.pc.gov.au/inquiries/completed/nt-children#report>.

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NDIS.59 The Northern Territory government intends to continue to provide basic community care services at their existing service levels to meet support needs not intended to be met by the NDIS.60 This is problematic for children with disability, and their families, who have difficulty accessing NDIS services, live in communities where there is high demand for health specialists services, or where the existing health services are limited or will receive less funds.

The development of the Children and Families Tripartite Forum, post Royal Commission into the Protection and Detention of Children in the Northern Territory, seeks to improve and coordinate services and policies for children.

Conclusion

Adequate data collection in the Northern Territory is critical to understand service demands and to inform much needed strategic planning to improve holistic and cultural responsive service delivery in the disability sector. As without this data it will continue to be difficult to develop evidence based approaches to issues currently experienced.

In the Northern Territory, Aboriginal children with disability face disproportionately high risk of violence and abuse in the child protection, youth justice and education systems61; therefore it is critical that culturally appropriate holistic assessment and support services are delivered to meet the unique needs of these children.

These holistic approaches must include early intervention, specialist accommodation to address overcrowding/homelessness, unemployment supports, life skills development, case management and assistive technology62; and must continue with children as they enter or leave the children protection and/or youth justice systems to ensure continuity.

As family and domestic violence levels continue to rise in the Northern Territory the number of children with disability who experience violence, abuse or neglect in their homes is likely to increase; driving more children into the child protection and youth justice systems.

The complexity of known disability related issues for children in the Northern Territory and the significant underutilisation of NDIS funding to date, indicates the current support model is not fully effective for the Northern Territory context. This requires a review of the level of flexibility available within the model and the ability for it to be adapted to the unique needs of Northern

59 Productivity Commission, Report on Government Services, Section 15: Services for people with disability (2020) <https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/community-services/services-for-people-with-disability/rogs-2020-partf-section15.pdf>. 60 Productivity Commission, Report on Government Services, Section 15: Services for people with disability (2020) <https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/community-services/services-for-people-with-disability/rogs-2020-partf-section15.pdf>. 61 Australian Institute of Family Studies, Child Protection and Aboriginal and Torres Strait Islander Children (2020) <https://aifs.gov.au/cfca/publications/child-protection-and-aboriginal-and-torres-strait-islander-children>; 62 Northern Territory Government, Reform Management Office, Children and Families Tripartite Forum (2018) <https://rmo.nt.gov.au/tripartite-forum>.

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Territory children, particularly those living in rural and remote areas. Furthermore, to effect change across all areas raised in this submission the Royal Commission requires trauma-informed measurable recommendations which can create a roadmap for implementation to improve the outcomes for children in the Northern Territory.