Australia’s first Indigenous Senior Counsel, Tony McAvoy SC is a Wirdi man who is Co-Chair of the Indigenous Legal Issues Committee of the Law Council of Australia, and has recently assisted the Royal Commission into Youth Detention in the Northern Territory.
To help raise awareness of the number of Aboriginal and Torres Strait Islander children being removed from family, Family Matters asked leaders from across the country to share their reflections during the National Week of Action – on what a new government should prioritise, on what a national strategy to solve this issue should look like, and on what future they’re working to help build for our children.
The new Federal Minister for Aboriginal and Torres Strait Islander children can no longer ignore the urgency of federal action required to redress the removal of our children into out-of-home care. My roles as Co-Senior Counsel assisting the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2016-17 and a lifetime working in the legal and government sector as a Wirdi man have pressed deeply on me the need for a fundamentally different approach to child protection as it relates to Aboriginal children.
Pressing need for federal leadership on child protection
The primary constitutional responsibility for children in Australia rests with the states and territories. However, as with many other areas of legislative responsibility, there are overlaying international obligations that relate to children arising from the United Nations Convention on the Rights of the Child. In addition, the Commonwealth bears the international responsibility for compliance with the International Convention on the Elimination of all forms of Racial Discrimination, and conformity with the international norms set out in the United Nations Declaration on the Rights of the Child.
It is my personal view that the Federal Parliament could, in exercise of its external affairs powers, regulate the child protection space in much the same manner as the Canadian parliament has regulated youth criminal justice. Indeed, given the growing number Indigenous child protection notifications and removals amongst the Australian states and territories, and their failure to implement or fully implement most recommendations from the most recent round of inquiries, there is a strong case that the Federal Government should intervene.
National child protection legislation could provide for:
- Accreditation of state and territory processes, including those to ensure that the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) is applied;
- Development of minimum standards;
- Access to the Federal Courts system if in the absence of accreditation or compliance with standards; and
- An Aboriginal and Torres Strait Islander Children’s Commissioner.
A strong case can also be made for national standardisation of the youth criminal justice system.
Enabling Aboriginal and Torres Strait Islanders communities
Recommendations from every inquiry and report into child protection and child detention since the Royal Commission into Aboriginal and Torres Strait Islander Deaths in Custody in 1991 have in some manner been directed at the empowerment of the communities in which the children live. There is no need for any other inquiry to tell government this message.
Contrary to this message being delivered by Aboriginal and Torres Strait Islander communities and spokespeople – as well as national and international child development experts, various government and non-government policy experts, and being reinforced in international human rights norms – federal, state and territory governments have consistently disempowered Aboriginal and Torres Strait Islander communities and attempted to mainstream and minimise those services.
If Aboriginal and Torres Strait Islander communities are not enabled and empowered to achieve community and family health and wellbeing then all other measures to address the over-representation of Aboriginal and Torres Strait Islander children are doomed to failure.
Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP)
The ATSICPP was designed to redress the disproportionate rate of Aboriginal and Torres Strait Islander children being adopted or placed in out-of-home care with non-Indigenous carers, and to reinforce the centrality of culture in the safety and wellbeing of our children, and to increase the self-determination of Aboriginal and Torres Strait Islander peoples in child welfare. It provides a basic mechanism by which decisions about the placement of Aboriginal and Torres Strait Islander children in need of out-of-home care could be made with the family and communities to which the child belongs. The mechanism relies upon being able to seek the advice of the child’s community (however that may be represented), before determining where to place the child. For this to operate effectively, some community infrastructure is required. With the exception perhaps of the arrangements between the Victorian Government and the Victorian Aboriginal Child Care Agency (VACCA), this infrastructure does not exist at the community level where it is required, and state and territory governments have failed to support its establishment.
The failure to achieve this fundamental element of the ATSICPP allows decisions to be made on an ad hoc basis and removes any prospect of consistent and transparent process, exacerbating existing trauma.
The way forward
There are many changes that need to be made to the child protection systems in place in Australia, including many that are cost neutral and could be described as fine-tuning aspects of the systems that are operating effectively. However, the problems that have led to the huge disparity in notifications and consequential interactions with the child protection system are structural, and require structural responses.
The removal of Aboriginal and Torres Strait Islander children from their families is also political. No matter whether it is cloaked in the mantra of child safety, the impoverishment and disempowerment of Aboriginal and Torres Strait Islander people is inextricably linked to the circumstances in which our communities and children exist. Culturally appropriate solutions must be found, not the removal of our children based upon a failure to comply with the norms and values of western culture – one which has led to the impoverishment and disempowerment we now see.
Because of Them, We Must.