Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)

to the

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

on the

DISCUSSION PAPER “AUSTRALIA’S CHILDREN: SAFE AND WELL - A NATIONAL FRAMEWORK FOR PROTECTING AUSTRALIA’S CHILDREN”

14 July 2008

Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600

 


Introduction

  1. The Human Rights and Equal Opportunity Commission (HREOC) makes this submission to the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) commenting on the Discussion Paper “Australia Children: Safe and Well – A National Framework for Protecting Australia’s Children”, May 2008 (Discussion Paper).
  2. HREOC is Australia’s national human rights institution.[1]
  3. HREOC commends the Commonwealth government for taking the initiative to advance a national response to stop the abuse and neglect of children wherever it occurs in Australia including to develop strategies and measures for turning around entrenched and unacceptable levels of Indigenous disadvantage. HREOC supports the efforts to develop a national framework that consolidates and unifies the different State/ Territory child protection systems, to ensure an integrated response across all government and non-Government organisations.

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Summary

  1. All children have the right to live in freedom from violence and with the full realisation of their right to participation, health, housing, food and education.
  2. Preventing and protecting children from child abuse and neglect is an important aspect maximising children’s life chances and advancing their social inclusion. Promoting and protecting the rights of children is a central means of overcoming social and economic disadvantage.
  3. As identified in the Discussion Paper the increasing rates of neglect and abuse across Australian society, including the over-representation of Indigenous children within this are a national concern.
  4. Australia has entered into binding legal obligations through human rights treaties relating to the protection of children. In particular, Article 19 of the Convention on the Rights of the Child and the International Convention on the Elimination of all forms of Racial Discrimination, of which Article 5 places specific obligations on States to protect children from all forms of violence, including neglect. Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination, also places specific obligations on States to a person’s right, without distinction as to race, colour or national or ethnic origin, to security against violence inflicted by government officials or individual group or institution. HREOC further notes Article 7 of the Convention on the Rights of Persons with Disabilities; this Convention has been signed by the Australian government and ratification has been recommended by the Joint Standing Committee on Treaties.[2] HREOC also notes that the government has expressed commitments to sign and support the Declaration on the Rights of Indigenous Peoples.
  5. In its consideration of the Discussion Paper, HREOC assessed the extent to which the proposed elements of a national framework for child protection complied with Australia’s human rights standards and obligations; and whether they contributed to the realisation of the rights of children.
  6. This submission outlines recommendations for consideration in relation to the following areas of a national child protection framework:
    • Consultation
    • Stronger prevention focus
    • Better collaboration between services
    • Improving responses to Indigenous children
    • Attracting and retaining the right workforce
    • Improving child protection systems

Recommendations

  1. HREOC recommends:
  2. Consultations be held with children and youth engaged in child protection systems as part of the development of a national framework [Recommendation 1];
  3. Against introducing mandatory income management schemes as part of the national child protection framework, and recommends the government consider measures that are compliant with the obligations of the right to social security and the best interests of the child, including alternative voluntary management schemes and increased provision of good quality, affordable and accessible education [Recommendation 2];
  4. Increased partnership between governments and Indigenous controlled organisations, and greater support and resourcing of Indigenous controlled organisations, particularly in the areas of early prevention and out-of-home care; and FaHCSIA develop, on a whole-of-government basis, a simplified single submission process to fund community initiatives to address Indigenous child abuse issues [Recommendation 5];
  5. The Aboriginal child placement principle and mechanisms for systematically applying it be a central feature of the national child protection framework [Recommendation 8];
  6. Employment strategies be put in place to increase the employment and retention of Indigenous staff in government and non-government child organizations working in child protection; and the cultural competency of all non-Indigenous staff in child protection agencies be improved [Recommendation 10];
  7. Adopting a human rights-based approach, including the paramount principles of the ‘best interests of the child’, ‘non-discrimination’, and the child’s ‘right to life’ and ‘right to participation’ for the national child protection framework [Recommendation 11].

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Consultation on a National Framework

  1. All children have the right to a life free from violence and abuse; and the Australian Government has a responsibility to “protect the child from all forms of maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims”.[3]
  2. HREOC welcomes the initiative to develop and implement a national child protection framework. There is a great need for a national framework that will bring consistency across the different child protections systems currently operating in the States and Territories and across the Federal and State/ Territory legislative frameworks that impact on child protection.
  3. The process of developing such a national framework should be undertaken in full consultation with all stakeholders to ensure that the interests and views of governments, service providers, practitioners, and the community are all duly considered. HREOC welcomes the government’s efforts to solicit responses to its Discussion Paper from a wide range of stakeholders.
  4. However, the most important group to involve in consultations would be those most affected by the child protection systems, namely, children and youth who have been involved in child protection processes.
  5. Currently there is no indication that there will be adequate consultation processes developed with this target group, and in particular with Indigenous children involved in child protection processes.
  6. The Convention on the Rights of the Child (Article 12) obliges Governments to protect “the child’s right to express his or her views freely in all matters affecting the child, those views being given due weight”.
  7. The Committee on the Rights of the Child notes the necessity for children to be involved in government decision-making processes and to this end state: “If consultation is to be meaningful, documents as well as processes need to be made accessible. But appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change. Listening to children should not be seen as an end in itself, but rather as a means by which States make their interactions with children and their actions on behalf of children ever more sensitive to the implementation of children’s rights.”[4]
  8. HREOC recommends that consultations be held with children and youth engaged in child protection systems as part of the development of a national framework [Recommendation 1].

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Stronger Prevention Focus

  1. HREOC welcomes the emphasis in the Discussion Paper on preventing child abuse and neglect through investment in a range of services for strengthening families and ensuring the wellbeing of children.
  2. In 2005-06, there were 266,745 reports to statutory child protection services nationally. This is more than double the number of reports received 5-years ago (115,471) and the rate is steadily increasing. However, of these, only 55,921 were substantiated.[5] The Discussion Paper similarly notes that four out of five reports on average across Australia are not substantiated.
  3. The National Child Protection Clearinghouse, in examining the different child protection systems across the country, found that while there are a high numbers of notifications, which create a large administrative burden on government departments, the number of children who need a child protection response is relatively small.[6] This is one indicator of the scope of inefficiency and ineffectiveness of the current child protection systems.
  4. The discrepancy between the levels of reporting and substantiated cases also demonstrates the need for clearer demarcations to be drawn between the role of ‘prevention’ and ‘statutory intervention’ in child protection systems. The research shows that the majority of families are in need of preventative support services, rather than statutory interventions, and that to date there has been an ineffective focus on statutory intervention over prevention.
  5. There may be benefit in distinguishing the government’s role to focus on statutory intervention processes where a child is determined to be at risk. This would address one of the concerns identified in the Discussion Paper of children and families being inappropriately drawn into the statutory child protection, where preventative support might be more appropriate.
  6. To support preventative measures, the Government could work in collaboration with and adequately fund a range of non-government service providers who work closely with families and communities to provide preventative support services. Clearly delineating access points to early intervention services that are outside of the government statutory child protection regime may encourage parents, families and children to more readily access these early-intervention services.
  7. The underlying premise of early intervention measures is the provision of supportive assistance and services to children, parents and families, to strengthen their capacity to provide for their children. Thereby, preventing economic and social circumstances from degenerating into situations of child abuse and neglect.
  8. Care should be taken to ensure that early intervention measures do not compel or limit people’s autonomy, particularly in ways that undermine their human rights. To ensure compliance with a human rights-based approach early intervention measures should maximise people’s right to participation and to make their own decisions about matters affecting them (e.g. decision about income management).
  9. HREOC also notes that children of parents with disabilities, and parents with intellectual disability in particular, require specific preventative and early intervention support services. Targeting provision of these services to this group and ensuring they are adequately supported throughout any engagement with child protection systems is essential to protecting their rights. Although addressing the needs of this particular group should be an essential component of a national child protection framework, this is unfortunately not sufficiently addressed within the Discussion Paper.

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Better Collaboration between Services

Income Management

  1. HREOC welcomes the need identified in the Discussion Paper for better collaboration between Federal and State/ Territory Government services, between primary secondary and tertiary intervention child protection services, and between government and no-government services.
  2. Within this focus on collaboration, there is an emphasis on income management approaches, whose implementation to date have raised concerns as to their effectiveness in addressing child abuse and their compliance with protecting children’s rights.
  3. Drawing on the examples of income management that have been implemented in the Northern Territory and the different approach about to be commenced in the Cape York[7], the Social Justice Commissioner has identified problems with such income management schemes and their compliance with human rights standards, particularly to the extent where the impact of these schemes may further exclude parents and families from social and economic services, away from the intended social inclusion objective.
  4. According to the new provisions in the Social Security Administration Act 1999 (Cth), the purpose of the legislation is to:
    • (a) stem the flow of cash expended upon substance abuse and gambling;
    • (b) ensure funds that are provided for the welfare of adults and children are spent on their priority needs; and
    • (c) promote socially responsible behaviour, particularly in relation to the care and education of children.
  5. Under the legislation, a person will become subject to the income management regime because they live in a prescribed community in the NT (s123UB), or a child protection officer recommends to Centrelink that they be subject to income management (s123UC), or their child or their partner’s child doesn’t meet school enrolment and attendance requirements (s123UD and s123UE) or because the Queensland Commission recommends the person for income management (s123UF).[8] Income management with respect to the carers of children who are identified by child protection authorities as ‘at risk’ will apply for as long as State Child Protection Authorities deem it necessary.
  6. Anywhere from 50% to 100% of the benefits can be subject to income management, depending on the category. The income management regime can apply to almost every form of welfare payment, including unemployment benefits, family assistance and veteran’s entitlements.
  7. The Minister has discretion to exempt people from income management. The legislation does not provide any limitations on the Minister’s power to grant an exemption nor any guidance on how the Minister is to exercise the discretion.
  8. While the review of the policies and programs undertaken in the NT intervention has just commenced, the Social Justice Report 2007 expresses preliminary concerns with the income management trials in, in terms of the compliance with human rights standards.
  9. The Convention on the Rights of the Child provides that children are entitled to benefit from welfare,[9] so measures that are designed to achieve this can be seen to address a legitimate human rights concern.However, from a human rights perspective, any national measures designed to realize the right to social security should not interfere with the enjoyment of other human rights and should be non-discriminatory. Further, the right to social security covers the right to access benefits, through a system of social security, in order to secure adequate (i) income security in times of economic or social distress; (ii) access to health care and (iii) family support, particularly for children and adult dependents. It should be broadly – rather than narrowly – defined.[10]
  10. Income management is a very invasive approach because it is based upon removing the right of a person to make their own decisions about expending their income, and removes their right to dignity: “Controlling how a person spends their money is a drastic interference into the way a person manages his or her life and family”.[11] The argument posited for allowing this removal of rights is the necessity to ensure a family’s income is directed towards the purchase of goods and services necessary for the child, which contributes to reducing neglect of children. However, a human rights approach requires a proportionate response to a problem. This means that governments are obliged to consider less intrusive or voluntary options as a first response before moving to options as broad-reaching as compulsory income management.[12]
  11. The blanket application of the income management regime in the 73 prescribed communities in the NT means that the measures are even applied to individuals that are not responsible for the care of children, do not gamble, and do not abuse alcohol or other substances. This creates a tenuous connection between the operation of the scheme and its object of addressing family violence and abuse. The more dominant criteria for being subject to the income management provisions in this instance appears to be the race of the welfare recipient, which would be hard to allow, even as a special measure, due to the lack of participation and consultation with Indigenous communities. Thus firstly, the scope of the income management regime needs to be refined to only apply in situations where a child is deemed to be at risk.

    “If the measures were targeted solely to parents or families in need of assistance to prevent neglect or abuse of children, as they are in s123UC of the legislation, then some form of income management may be capable of being seen as an appropriate exercise of the governments ‘margin of discretion’ to ensure that families benefit from welfare and receive the minimum essentials for survival.”[13]

  12. Secondly, where the income management regime allows for up to 100% of the income to be quarantined this hinders the capacity of the family to act in the best interests of the child. For instance, in a survey completed by the Darwin Aboriginal Rights Coalition, 90% of respondents had experienced problems with the income management scheme, with 74% having experienced it causing problems within families.[14] Some of the problems included not being able to pay large bills or purchase large items, not being able to send money to children in boarding schools, lack of cash available for purchasing medications, or for transport to access education and health services, and not being able to access affordable food on a regular basis (having to wait for it to be transported in). To this extent income management can result in children’s rights to food, education and health care being denied. Therefore consideration needs to be given to reducing the scope of the income management scheme to a maximum of 50% of the benefits received.
  13. Thirdly, the limitations on reviewing decision making in relation to the income management regime, and the denial of external merits review processes, significantly undermines the ability to characterise the income management regime as an adapted and appropriate response. “This is a clear denial of justice, is discriminatory in its impact and does not meet the requirement for the provision of effective judicial or other appropriate remedies that is integral to the right to social security. The absence of access to complaints processes such as under the Race Discrimination Act 1975 (Cth) (RDA), also breaches the right to social security”.[15] In contrast, the model proposed by the Cape York Institute in its report From a hand out to a hand up contains more appropriate procedural guarantees and participatory requirements to enable those proposed measures to potentially be characterised as a special measure and as consistent with the right to social security.
  14. From a human rights approach, it is clear that an income management regime violates the right of social security for recipients of welfare benefits, and in some cases can violate the rights of children to food, education and health care. These violations cannot be justified as it has not been clearly demonstrated to date that income management is an effective means for reducing child abuse and neglect. Therefore it is not recommended that income management be adopted at this point on a wider scale, as part of the national child protection framework. The government could look instead to alternative voluntary income management programs that have been successfully trialled, such as the Tangentyere Council (in Alice Springs) voluntary scheme which supports over 800 Aboriginal people to use Centrepay to pay bills and rent. Under this scheme, Centrepay provides part of people’s welfare payment in the form of food vouchers.[16] This has become a popular scheme that still allows participants to exercise choice and control over their money. The government could also generate more positive results by focusing on improving the quality and availability of education rather than introducing measures that penalise parents, particularly along the lines of income management of 100% of welfare entitlements.[17] Should an income management regime be introduced it should be made to comply with the obligations for fulfilling the right to social security and the rights of the child, particularly the principle of the best interests of the child.
  15. HREOC recommends against introducing mandatory income management schemes as part of the national child protection framework; and recommends the government consider measures that are compliant with the obligations of the right to social security and the best interests of the child, including alternative voluntary management schemes and increased provision of good quality, affordable and accessible education. [Recommendation 2].

National plan to reduce violence against women and children

  1. HREOC commends the Federal Government for establishment of the National Council to Reduce Violence against Women and Children. A primary role of the National Council is to develop a National Plan to reduce violence against women and children. It is essential that the Government ensures coordination between the National Child Protection Framework process and the work of the National Council. Family and domestic violence may be a direct cause of children coming into contact with the care and protection system. Inadequate responses to women experiencing violence may directly lead to children being placed at risk. This may be as a result of violence experienced by children, or children witnessing violence, or children being neglected as a result of a mother being unable to remain safe. It is essential that policy frameworks for the care and protection of children improve the protection of women and children from violence. Children may not be in need of care and protection if their mother can be protected from family and domestic violence.
  2. HREOC refers to its recent Submission to the Federal Government’s Green Paper on Homelessness.[18] Violence against women and children can directly lead to their homelessness. Homeless children may then come into contact with the care and protection system. Meeting the housing needs of children who are at risk is a first priority. Without a secure home, children are at greater risk of neglect. Any National Homelessness Strategy should ensure that the housing needs of all children are met.
  3. HREOC’s Report on Ending Family violence and Abuse in Aboriginal and Torres Strait Islander Communities outlines a human rights-based action plan for addressing family violence in Indigenous communities in Australia. It highlights the need for Indigenous participation, support for Indigenous community initiatives and networks, human rights education, government action, and robust accountability and monitoring.[19]
  4. The Social Justice Report 2007 further reported on existing initiatives in Australia dealing with family violence in Indigenous communities. Based on an examination of the successful elements of these initiatives, it recommended prioritising funding for Indigenous community initiatives that address family violence and child abuse, and establishing an information sharing mechanism for sharing knowledge and successes in Indigenous family violence abuse initiatives.[20]
  5. The government, in developing a national plan to reduce violence against women and children should consider the recommendations for addressing Indigenous family violence and abuse made in HREOC’s Ending Family Violence Report and the Social Justice Report 2007.

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Improving responses to Indigenous children

Over-representation of Indigenous children and youth in child protection systems

  1. HREOC welcomes the emphasis in the Discussion Paper given to recognising and addressing the significant over-representation of Indigenous children in child protection systems.
  2. The history of over-representation of Indigenous children within Australia’s child protection system has been strongly marked by the experiences of the Stolen Generation. The Bringing them home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, documents the experiences of the stolen generation, forcibly removed from their families under the guise of welfare.[21] The Prime Minister of Australia, apologised to the Stolen Generations on 13 February 2008 for “laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians...especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country”.[22] While the Apology was welcomed by many Indigenous Australians, it is important to remember that any consideration of Indigenous children in Australia’s child protection system, starts with an acknowledgement of the racist and damaging history of forced removal, which for many Indigenous Australians, remains a close and real fact of their interactions with the child protection system.
  3. The Bringing them home Report found that Indigenous children comprise only 2.7% of Australian children but they were 20% of children in care in 1993.[23] More recently, the Australian Institute of Health and Welfare data has shown “An Indigenous child is six times more likely to be involved with the statutory child protection system than a non-Indigenous child, but four times less likely to have access to child care or preschool service that can offer family support to reduce the risk of child abuse.”[24] Nationally, Indigenous children are 7 times more likely to be in out-of-home care than non-Indigenous children.[25]
  4. In spite of these stark statistics, the Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred” Report argues that child abuse is chronically under-reported especially in Indigenous communities. In part the report attributes the under-reporting to the impact of the past government policies that removed children from their families (Stolen Generation) and the impacts of imprisonment of family and community members in jails (i.e. deaths in custody).[26] The National Child Protection Clearinghouse has similarly said one of the key challenges for child protection systems is “implementing and enhancing culturally appropriate interventions for Aboriginal and Torres Strait Islander children and their families, and services to assist preventing their over-representation in statutory child protection services”.[27]
  5. The Social Justice Report 2007 has a case study on the Lakidjeka Aboriginal Child Specialist Advice and Support Service (Lakidjeka ACSASS), which is an example of an effective Indigenous initiative that works to ensure statutory child protection services are culturally appropriate for Indigenous children and families. Lakidjeka ACSASS provides specialist advice and support to the Department of Human Services’ Child Protection Service in relation to all Indigenous children within the child protection system.
  6. Lakidjeka ACSASS is premised on a partnership between government and community that is cemented in a protocol for child protection and engagement. The protocol outlines the responsibilities of both government staff and Lakidjeka ACSASS staff, identifying what actions need to be taken in relation to Indigenous children, starting at the point the government department is notified. Lakidjeka ACSASS also assist Indigenous families and children to understand the child protection system and how it works. There is a 95% compliance rate with the protocol.

    “The Lakidjeka ACSASS staff believe that it has resulted in less Indigenous children being removed from their families through better understanding of the cultural issues and referral to appropriate family support services. Where children are removed there seems to be a higher compliance with the Aboriginal child placement principle”[28]

  7. Successful Indigenous initiatives such as this should be looked to more as a means of addressing the over-representation of Indigenous children in child protection systems.

Addressing Indigenous Disadvantage

  1. In order to consider the best ways to prevent and address child abuse and neglect in Indigenous communities, it is firstly important to understand the link between the socio-economic disadvantage of Indigenous Australians, and the high levels of substantiated cases of neglect of Indigenous children.[29]
  2. The socio-economic disadvantage experienced among Indigenous people results in children living in poverty, overcrowded houses, and a lack of access to affordable and accessible health and education services. The discussion on abuse needs to consider the role of government failure to provide accessible and affordable services and opportunities, and the consequent fostering of conditions that can contribute to child abuse and neglect.
  3. The Social Justice Report 2007 noted that while risk factors for child abuse are not specific to Indigenous communities, the social disadvantage that many Indigenous people face means that more of these risk factors apply.[30] Some of the multi-level risk factors found to be associated with child abuse included:
    • - Social inequalities in the community and unenforced laws
    • - Poor socio-economic status, over crowded living conditions, social isolation, high levels of stress, history of violence, and alcohol/ substance misuse in the family
    • - the young age and low education levels of parents, demands on single parents, inadequate parental care, relationship problems, physical/ mental illness among parents
    • - low supervision by parents, gender and disability of the child can also make them vulnerable to abuse.[31]
  4. Whilst the recent focus on child abuse has brought national attention to the plight of many Indigenous children there is a risk that the underlying socio-economic causes of child neglect will continue to escape public attention and government action. Child neglect is the most significant and common reason for Aboriginal and Torres Strait Islander children to be removed from their families and placed in care. As is the case for all groups of children, family poverty, inadequate housing, poor community infrastructure, high levels of unemployment and limited or no access to support services are the major causes of child neglect. The negative impact of these issues lies largely beyond the control of individual families and communities and requires action and investment from governments to be resolved or ameliorated.[32]
  5. Thus, in considering the development of a national framework for child protection HREOC welcomes the government’s concurrent commitments to addressing Indigenous disadvantage in the areas of employment, health, housing and education, as key underlying factors impacting on child protection.
  6. HREOC also welcomes the commitments the Government made at the Indigenous Health Equality Summit in 2008 that will directly address Indigenous disadvantage. The Government committed to working with Indigenous people to achieve equality in health status and life expectancy between Indigenous and non-Indigenous Australians by 2030. This included a commitment to develop a comprehensive, long-term plan of action that is targeted to need, evidence based and capable of addressing the existing inequalities in health services. The realisation of these commitments is a significant aspect of overcoming Indigenous disadvantage in Australia.[33]
  7. HREOC recommends that the Government ensure that a national framework for child protection is consistent with the plan of action the government has committed to developing for removing inequalities in the health status of Indigenous people [Recommendation 3].

A common approach to protecting Indigenous children

  1. HREOC welcomes the work of the COAG Working Group on Indigenous Reform and supports the integration of the National Child Protection Framework with the work of this body.
  2. In terms of sustaining a common approach for the protection of Indigenous children and youth – that is holistic and integrated across the whole of government - it is important that a clear rights-based approach underlies the common approach. This requires ensuring that the approach promotes the best interests of the child, is non-discriminatory and protects the right of children and youth to participate.
  3. The Bringing them home Report provides a clear articulation of what is practically required for a child protection framework to promote the best interests of Indigenous children:

Standard 1: Best interests of the child - factors

46a. That the national standards legislation provide that the initial presumption is that the best interest of the child is to remain within his or her Indigenous family, community and culture.

46b. That the national standards legislation provide that in determining the best interests of an Indigenous child the decision maker must also consider:

1. the need of the child to maintain contact with his or her Indigenous family, community and culture,

2. the significance of the child's Indigenous heritage for his or her future well-being,

3. the views of the child and his or her family, and

4. the advice of the appropriate accredited Indigenous organisation.

Standard 2: When best interests are paramount

47. That the national standards legislation provide that in any judicial or administrative decision affecting the child protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.

Standard 7: Adoption a last resort

52. That the national standards legislation provide that an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party.[34]

  1. HREOC recommends that the National Child Protection Framework implement the recommendations 46, 47 and 52 of the Bringing them home Report [Recommendation 4]
  2. HREOC also notes that a rights-based approach to Indigenous child protection is consistent with the Statement of Principles issued by the Secretariat of National Aboriginal and Islander Child Care (SNAICC). SNAICC’s Statement of Principles outlines the features required for an effective child well-being and protection system for Aboriginal and Torres Strait Islander children, and these include: rights and self-determination driving the legislation, policy, program and practice; the implementation of the Indigenous child placement principle; recognition of families as the most important and sustainable support system for children; availability of primary, secondary and tertiary support services, that keep Indigenous children safe and connected to their families and culture; and the prevalence of local Indigenous community based agencies working on these issues.[35]
  3. HREOC welcomes the development and adoption of clear national principles and standards for child protection systems that promote and protect the rights of Indigenous peoples.

A better service model to protect Indigenous children

  1. HREOC welcomes the proposal in the Discussion Paper to develop new service for models for Indigenous families that are responsive to the specific forms of disadvantage faced by Aboriginal children and families, and the differing cultural contexts.
  2. An important factor in reducing the over-representation of Indigenous children in child protection systems is the extent to which they are assisted by service models. The research to date overwhelmingly demonstrates that the provision of services to Indigenous communities, is far more effective when provided by Indigenous controlled organisations,

    “For effective services to be provided, and the best interests of children protected, it is essential that self-determination and self-management by Aboriginal and Torres Strait Islander people extend to total management of the welfare of ATSI children and families, including needing child protection services and out-of-home care”.[36]

  3. The Bringing them home Report recommended that “the national standards legislation provide that in any matter concerning a child the decision maker must ascertain whether the child is an Indigenous child and in every matter concerning an Indigenous child ensure that the appropriate accredited Indigenous organisation is consulted thoroughly and in good faith. In child protection matters that organisation must be involved in all decision making from the point of notification and at each stage of decision making thereafter including whether and if so on what grounds to seek a court order”.[37]
  4. Lessons learnt from comparable jurisdictions overseas, such as the United States of America and Canada, concur in the importance of facilitating Indigenous control over child protection matters and promoting the emergence of Indigenous controlled services.[38]
  5. The Social Justice Report 2007 profiled several successful Indigenous controlled child protection programs for Indigenous children covering the spectrum of prevention, family support, primary intervention and statutory intervention initiatives.[39]
  6. The Social Justice Report 2007 found that in many situations family support, primary prevention and early intervention programs are more successful and cost effective in supporting Indigenous families than statutory interventions.[40] While it is appropriate for government departments to maintain a strong role in statutory intervention where child protection measures are required, there is wide recognition of the positive work of Indigenous community organisations who are more effective in providing early-prevention and out-of-home-care services.
  7. However, as the Bringing them home Report also noted the lack of funding of Aboriginal and Islander child care agencies limits the scope for partnership between Government and community organisations and limits the capacity of Aboriginal and Islander child care agencies to support, and facilitate the participation of Aboriginal families in their areas: “The difference in being allowed to participate and having the right to make decision is evident in Indigenous communities’ experience of child welfare systems.’[41]
  8. HREOC recommends the national child protection framework encourage increased partnership between governments and Indigenous controlled organisations, and greater support and resourcing of Indigenous controlled organisations, particularly in the areas of early prevention and out-of-home care. HREOC recommends that FaHCSIA develop on a whole-of-government basis, a simplified single submission process to fund community initiatives to address Indigenous child abuse issues [Recommendation 5].

Out-of-Home Care for Indigenous Children and Youth

  1. Out-of-home care for Indigenous children is a key area where the service models could also be significantly improved.
  2. The Breaking the Silence Report commissioned by the NSW Government and released in 2006 identified 119 recommendations to address child sexual assault in Aboriginal communities in NSW. The report found that many Aboriginal people continue to fear and mistrust government services and the current child protection agency has not been successful in overcoming the wrongs of the past or in building trust with communities. In particular the report found that:
    • there were insufficient stable out-of-home care placements available for Aboriginal children and young people
    • identified the importance of thoroughly assessing and monitoring out-of-home care placements to ensure they are safe for children before a child is placed there; and
    • where a stable ‘kinship’ out-of-home care placement exists, to provide adequate financial and practical supports to enable it to continue.[42]
  3. SNAICC has also reported on the lack of Indigenous out-of-home care placements currently available in child protection systems, and the lack of resources and support available to Aboriginal carers providing out-of–home care placements. SNAICC calls for an approach to out-of-home care for Aboriginal and Torres Strait Islander children that:
    • Is culturally strong and provides security and stability without adoptions and without the need for strict ‘permanency planning’ rules and time limits;
    • Includes a central role for foster carers in supporting children in out-of-home care to maintain and strengthen their connections with their Aboriginal or Torres Strait Islander family and community and their cultural and spiritual heritage;
    • Recognises the strengths of Aboriginal and Torres Strait Islander family and kinship systems.[43]
  4. HREOC recommends that greater resources and support be provided to Indigenous controlled organisations to facilitate for out-of-home-care that promotes the retention of family and cultural links of Indigenous children [Recommendation 6].

Supporting compliance with the Aboriginal child placement principle

  1. HREOC welcomes the need identified in the Discussion Paper for wider and more consistent application of this key principle for protecting and ensuring the wellbeing of vulnerable Indigenous children.
  2. The Bringing them home Report made the following recommendations on the Indigenous child placement principle.

Standard 6: Indigenous child placement principle

51a. That the national standards legislation provide that, when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent, is to be made in accordance with the Indigenous child placement principle.

51b. Placement is to be made according to the following order of preference,

1. placement with a member of the child's family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or Torres Strait Islander law,

2. placement with a member of the child's community in a relationship of responsibility for the child according to local custom and practice,

3. placement with another member of the child's community,

4. placement with another Indigenous carer.

51c. The preferred placement may be displaced where,

1. that placement would be detrimental to the child's best interests,

2. the child objects to that placement, or

3. no carer in the preferred category is available.

51d. Where placement is with a non-Indigenous carer the following principles must determine the choice of carer,

1. family reunion is a primary objective,

2. continuing contact with the child's Indigenous family, community and culture must be ensured, and

3. the carer must live in proximity to the child's Indigenous family and community.

51e. No placement of an Indigenous child is to be made except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child. [44]

  1. While the principle has been adopted in legislation in several state jurisdictions, in accordance with the recommendations of the Bringing them home Report, it would still be useful to consider the Report’s recommendations for the development of the national framework on child protection.
  2. HREOC recommends implementation of the Bringing them home Report recommendations (Standard 6: Indigenous child placement principle, s 51 a – e) in the national child protection framework. [Recommendation 7]
  3. Although the Aboriginal child placement principle has been in operation in various state and territory jurisdictions, we agree that there is a need to consider stronger compliance with the Principle and mechanisms for achieving this. In the current Special Commission of Inquiry into Child Protection Services in New South Wales, at the Public Forum for Aboriginal Communities on 24 April 2008 the NSW Department of Community Services (NSW DoCS) noted that “the early identification and immediate identification of an Aboriginal child and who are the potential people that can care for them in their relative or kinship system is absolutely critical”.[45] Despite this, the Department then went on to acknowledge that there may not be sufficient compliance with the Aboriginal placement principle under the Act. Even though the NSW government’s report to the commission inquiry identified that “85 per cent of Aboriginal children (are placed) in accordance with the Aboriginal Placement Principles”,[46] the Department noted that “What that figure measures is compliance with a process rather than Aboriginal children in placements with Aboriginal carers, either authorised foster carers or authorised kinship or relative carers.”[47]
  4. Submissions to the NSW Commission Inquiry highlighted examples that demonstrate low levels of compliance with the Aboriginal child placement principle in NSW.

    “In many instances DoCS workers are not sufficiently investigating the cultural and family background of these children, nor making contact with extended members of the child’s family to establish if there are family or kinship members able to care for the child. In some instances the Court is dealing with Indigenous children without the Court even knowing that the child is Indigenous. The following case studies are illustrations of when the Aboriginal Placement Principles have not been applied”.[48]

CASE STUDY 7

An Aboriginal grandmother approached a CLC for assistance in obtaining residency or at least contact with her 18-month old grandchild. The child had been removed from its mother (our client’s 18 year old daughter-in-law) a week previously and had been placed with the mother’s non-Aboriginal Aunt, who had very little previously to do with the child and whose own partner had a sordid reputation.

The Aboriginal grandmother had, until the child’s removal, played a principal role in both caring for the child and supporting the mother to parent the child. The grandmother usually saw the child several times a week for several hours at a time and had looked after the child overnight and unsupervised numerous times. The grandmother is a well-known elder in the community and was trusted by her various neighbours (both Aboriginal and non-Aboriginal) with the care of many of the neighbourhood children, who she often entertained and played with unsupervised.

DoCS did not consult the grandmother as to her concerns for the child or potential placements for the child, prior to the child being removed. This was despite the fact that DoCS had a short meeting with the grandmother only days prior to the child’s removal.

The first time the matter was listed for mention in the local Children’s Court, being a week after the child’s removal, the grandmother had not been listed as a party and the Magistrate refused to acknowledge her standing to be heard by the court. No orders for contact were made, despite there being little evidence of harm on the Court file and no appearance by any DoCS officer to present information to the Court. The second court mention was held a week after this and the CLC had at this stage been contacted and had arranged representation for the grandmother as well as a lengthy affidavit supporting orders for residency or at least contact. The Court indicated that there was nothing on the Court file to suggest that the child was Aboriginal or that any other family members should be a party to proceedings because of their relationship with the child.

  1. The evidenced based research indicates that the application of the Aboriginal child placement principle is essential to ensuring appropriate handling of Aboriginal families who come into contact with child protection systems.[49] However, there is a need to ensure the legislation and procedures are standardised across jurisdictions and to improve compliance of the principle.
  2. Further, as SNAICC have noted , “to improve compliance with the Principle and provide stable, secure and culturally strong placements, Aboriginal and Torres Strait Islander agencies need to be provided with additional resources and support to more effectively recruit, assess, register, train and support Aboriginal and Torres Strait Islander foster carers. Kinship carers should be eligible for the same funding, support and training as non-kinship carers.”[50] This reflects the need for better resourcing and supporting of Indigenous community members to become foster carers.
  3. HREOC recommends that the Indigenous child placement principle and mechanisms for systematically applying it be a central feature of the national framework for child protection [Recommendation 8].

Northern Territory Emergency Response review

  1. The Discussion Paper notes the Northern Territory Emergency Response (“NT Emergency Response”) to child sexual abuse in Indigenous communities in the Northern Territory, and the forthcoming review of the response.
  2. In advance of the review by the Australian government, scheduled to be completed by September 2008, the Social Justice Commissioner has reported his preliminary findings on the NT Emergency Response and its compliance with human rights standards.[51]
  3. The Social Justice Commissioner found that the NT Emergency Response contravened several human rights standards. Some of the key concerns included the inappropriate classification of the NT legislation as a special measure, making it inconsistent with the Race Discrimination Act 1975 (Cth), the racially discriminatory nature of some of the legislative provisions, and the explicit prevention of the application of the Race Discrimination Act 1975 (Cth), and the Northern Territory Anti Discrimination Act, that essentially removed any protections from discrimination under the legislation.[52]
  4. The Social Justice Report 2007 also outlines a ten point action plan for modifying the NT intervention to be compliant with human rights standards. The ten point plan includes restoring all procedural fairness and external merits review, reinstating protections against racial discrimination, removing provisions that are declared to be special measures, and ensuring the effective participation of Indigenous peoples in all aspects of the intervention.[53]
  5. HREOC recommends that the review of the NT Emergency Response consider the findings and recommendations of the Social Justice Report 2007 [Recommendation 9].

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Attracting and Retaining the Right Workforce

Specific Indigenous child protection workforce strategy

  1. HREOC supports the Discussion Paper’s suggestions for ensuring an adequate and well trained workforce that includes not only expanding the workforce but improving opportunities for professional development and proper resourcing and support processes.
  2. Between 2002-2006 every jurisdiction in Australia embarked on a substantial reform agenda for child protection. In every jurisdiction the capacity of child protection staff has been identified as a significant area for improvement.[54] The NSW Breaking the Silence Report made specific recommendations for the NSW Department of Community Services to increase the number of Aboriginal employees, provide greater support for those employees and ensuring that all employees received cultural awareness training.[55]
  3. The Social Justice Report 2007 profiled examples of effective programs for family support and child protection. The lessons learnt from these positive examples showed “Indigenous staff make the crucial difference in providing culturally appropriate child protection services. The high rate of Indigenous staff makes the service more comfortable for children...Indigenous staff prove the difference in the family mapping process and finding long term placements”.[56] The report also noted the high levels of demand and stress that Indigenous staff are placed under, and the importance of supporting them in their work.
  4. HREOC supports initiatives to increase the numbers of Indigenous organisations and Indigenous staff working in both Indigenous and non-Indigenous organisations, and the proper resourcing and supporting of Indigenous organisations and Indigenous staff.
  5. In addition the expansion of an Indigenous workforce needs to be supplemented by improvements to the cultural competency of non-Indigenous staff in child protection agencies, through cultural awareness training, and ensuring culturally appropriate policies, procedures and practices are in place.
  6. HREOC recommends that employment strategies be put in place to increase the employment and retention of Indigenous staff in government and non-government organizations working in child protection; and to improve the cultural competency of all non-Indigenous staff in child protection agencies [Recommendation 10].

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Improving Child Protection Systems

A rights-based approach to child protection

  1. HREOC welcomes the government’s efforts to adopt a social inclusion agenda that aims to address not only child abuse, but also the underlying and inter-related factors to of poverty, homelessness, domestic violence, mental health and alcohol and drug addiction.
  2. Preventing and protecting children from child abuse and neglect is an important aspect of maximising children’s life chances and advancing their social inclusion. Promoting and protecting the rights of children, is a central means of overcoming social and economic disadvantage and achieving social inclusion.
  3. Informing the national framework with a rights-based approach to child protection, will ensure the Australian government adopts a national framework that is holistic and accountable, and further strengthens the social inclusion agenda.
  4. The Committee on the Rights of the Child in its General Comment 5 has said that “The development of a children’s rights perspective throughout government, parliament and the judiciary is required for effective implementation of the whole convention”.[57] The central tenet to children’s rights perspective are the paramount principles of the ‘best interests of the child’, ‘non-discrimination’, and the child’s ‘right to life’ and ‘right to participation’.[58]
  5. The Convention on the Rights of Child requires States to develop a national comprehensive framework for the protection of children’s rights that include a range of legislative and administrative measures.[59] Currently there is no comprehensive framework of protection for children’s rights in Australia.
  6. The United Nations Declaration on the Rights of Indigenous Peoples (DRIP) adopted by the UN General Assembly in 2007 also raises specific obligations with regard to the promotion and protection of Indigenous people’s rights. Article 22 of the Declaration recognises the rights and special needs of indigenous elders, women, youth, children and persons with disabilities, and obligates States to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination. Article 21 also recognises indigenous people’s rights to the improvement of their economic and social conditions and allows for special measures to ensure, this particularly for indigenous elders, women, youth, children and persons with disabilities.[60]
  7. In practice, a rights-based approach to child protection means:
    • recognising and protecting children’s freedom from violence and abuse
    • promoting and protecting the best interests of the child
    • enabling children and youth’s right to full and effective participation in decisions which effect their lives
    • protecting children and youth’s right to non-discrimination
    • adopting a holistic approach that addresses the causes and consequences of abuse, including the underlying socio-economic disadvantage within Indigenous communities.
    • applying a transparent and accountable system, which includes the development of rigorous benchmarking, monitoring and reporting systems, and allows the measurement of the exercise and enjoyment of people’s rights over time.[61]
  8. The United Nations Common Understanding of Human Rights-based Approach to Development Cooperation outlines what rights-based approach means in practice for policy development and service delivery. This includes:
    • Recognising people as key actors in their own development, rather than as passive recipients of commodities and services
    • Applying empowering strategies
    • Focussing programs on marginalized, disadvantaged, and excluded groups and on reducing disparity
    • Using situation analysis to identity immediate, underlying, and basic causes of development problems.
    • Identifying measurable goals and targets
    • Monitoring and evaluating both outcomes and processes
    • Developing and sustaining strategic partnerships and supporting accountability to all stakeholders.[62]
  9. A human rights approach to child abuse requires a holistic response that provides a range of support and intervention measures at all stages of the child protection continuum from family support, primary prevention, early intervention and statutory intervention. The Social Justice Report 2007 notes that there are a range of programs and areas that must be addressed holistically to address child abuse and promote change. These include:
    1. support programs
    2. identity programs
    1. behavioural change
    1. night patrols
    2. refuges and shelters
    3. justice programs
    4. dispute resolution
    5. education and awareness raising, and
    6. holistic composite programs[63]
  10. The Committee on the Rights of the Child has identified several general measures for implementation of the Convention on the Rights of the Child which could also form the basis of a rights-based approach to child protection. These measures include establishing coordinating and monitoring bodies, comprehensive data collection, awareness raising, and delivering appropriate services, training and programs.[64] More specifically, the Committee on the Rights of the Child has endorsed governments developing child focused bodies, structures and initiatives, such as ministers for children, parliamentary committees, child impact statements, children’s budgets, child rights reporting, and Children’s Commissioners.[65]
  11. The several options listed in section six of the Discussion Paper for inclusion in a National Framework would be useful improvements to the child protection system. It is important that those options recognise the indivisibility and interrelatedness of all human rights regarding child protection. For example, in identifying national indicators of child wellbeing a rights-based approach would provide a more holistic response by not only seeking indicators in relation to a child’s right to protection from violence or abuse but would also illuminate the necessity of a child’s right to participation, health, housing and education.
  12. The Discussion Paper also makes reference to the potential for a national Children’s Commissioner to assist with the development of national standards and performance reporting. HREOC considered the usefulness of a Children’s Commissioner in the inquiry into children and the legal process in 1997. In the report of the inquiry, Seen and heard, HREOC agreed with submissions that an independent body, such as a Children’s Commissioner, to provide broad based national advocacy for children is needed.[66]
  13. HREOC notes that there is renewed interest from community organisations regarding a national Children’s Commissioner. HREOC encourages the government to consider the possibility of a Children’s Commissioner to provide national advocacy for children and young people, with functions grounded in Australia’s human rights obligations.
  14. HREOC recommends adopting a human rights-based approach, including the paramount principles of the ‘best interests of the child’, ‘non-discrimination’, and the child’s ‘right to life’ and ‘right to participation’ for the national child protection framework [Recommendation 11].

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Appendix: List of HREOC Recommendations

  • Consultations be held with children and youth engaged in child protection systems as part of the development of a national framework [Recommendation 1];
  • Against introducing mandatory income management schemes as part of the national child protection framework, and recommends the government consider measures that are compliant with the obligations of the right to social security and the best interests of the child, including alternative voluntary management schemes and increased provision of good quality, affordable and accessible education [Recommendation 2];
  • Government ensure that the national framework for child protection is consistent with the plan of action the government has committed to developing for removing inequalities in the health status of Indigenous people [Recommendation 3].
  • The National Child Protection Framework implement recommendations 46, 47 and 52 of the Bringing them home Report [Recommendation 4];
  • Increased partnership between governments and Indigenous controlled organisations, and greater support and resourcing of Indigenous controlled organisations, particularly in the areas of early prevention and out-of-home care; and FaHCSIA develop, on a whole-of-government basis, a simplified single submission process to fund community initiatives to address Indigenous child abuse issues [Recommendation 5];
  • Greater resources and support be provided to Indigenous controlled organisations to facilitate for out-of-home-care that promotes the retention of family and cultural links of Indigenous children [Recommendation 6];
  • Implementation of the Bringing them home Report recommendations (Standard 6: Indigenous child placement principle, s 51 a – e) in the national child protection framework. [Recommendation 7];
  • The Aboriginal child placement principle and mechanisms for systematically applying it be a central feature of the national child protection framework [Recommendation 8];
  • The review of the NT Emergency Response consider the findings and recommendations of the Social Justice Report 2007 [Recommendation 9];
  • Employment strategies be put in place to increase the employment and retention of Indigenous staff in government and non-government child organizations working in child protection; and the cultural competency of all non-Indigenous staff in child protection agencies be improved [Recommendation 10];
  • Adopting a human rights-based approach, including the paramount principles of the ‘best interests of the child’, ‘non-discrimination’, and the child’s ‘right to life’ and ‘right to participation’ for the national child protection framework [Recommendation 11].

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Endnotes

[1] HREOC is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’). Sections 11 and 31 of the HREOC Act set out HREOC’s functions relating to human rights and equal opportunity in employment respectively. HREOC also has functions under the Commonwealth Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability Discrimination Act 1992 and Age Discrimination Act 2004.
[2]http://www.aph.gov.au/house/committee/jsct/4june2008/report.htm
[3]UN Convention on the Rights of the Child, 1989, Article 19.
[4] General Comment 5: General measures of implementation for the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument, accessed on 11 June 2008. The obligation to consult with children is further articulated by the Committee in relation to Indigenous children in the Committee’s “Day of general discussion on the Rights of Indigenous Children – recommendations”, 3 October 2003, available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion/indigenouschildren.pdf, accessed on 11 June 2008.
[5] Leah Bromfield, “Trends in Child Protection Services - A National Snapshot”, National Child Protection Clearinghouse, Australian Institute of Family Studies, 2008.
[6] Leah Bromfield, “Trends in Child Protection Services - A National Snapshot”, National Child Protection Clearinghouse, Australian Institute of Family Studies, 2008.
[7] For an overview of the income management schemes being introduced in these areas see, Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2007, HREOC, Sydney, 2008, pp 268-271.
[8] It is expected that the jurisdiction of the QLD Commission will only cover the four Aboriginal communities in Cape York which have agreed to participate in the Cape York Welfare Reform Trials: Hope Vale, Aurukun, Mossman Gorge and Coen.
[9]UN Convention on the Rights of the Child, 1989, Article 26
[10] This is based on information contained in General Comment 20 on implementation of ICESCR by the United Nations Committee on Economic, Social and Cultural Rights: UN Doc: E/C. 12/GC/20/CRP. 1, available online at: http://www2.ohchr.org/english/bodies/cescr/comments.htm, accessed 7 January 2008, and is outlined in more detail in the Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p271.
[11] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p278.
[12] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p278.
[13] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p277.
[14]Media Release - Data shows intervention is a disaster: national rallies planned”, 5 June 2008, available online at http://aboriginalrightscoalition.wordpress.com/, accessed on 10 June 2008.
[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p277.
[16] Combined Aboriginal Organisations of the Northern Territory, A proposed emergency response and development plan to protect Aboriginal children in the Northern Territory: A preliminary response to the Australian Government’s proposals, 10 July 2007, p16, available online at: http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf, accessed 2 November 2007.
[17]Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p280.
[18] HREOC, Submission to the Green Paper on Homelessness: Which Way Home?, 4 July 2008.
[19] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander communities: Key issues, HREOC, Sydney, 2006, pp5-6.
[20] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, pp 194-95.
[21] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997, Sydney
[22] House of Representatives, Official Hansard No.1 , 2008, Wednesday, 13 February 2008, Forty second Parliament, First Session, First Period, p167 (available online at http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf, accessed on 10 June 2008)
[23] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997, Sydney, p430.
[24] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p116.
[25] Cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p12.
[26] Anderson P., and Wild R., Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’ Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Northern Territory Government, Darwin 2007, p77.
[27] Leah Bromfield, “Trends in Child Protection Services - A National Snapshot”, National Child Protection Clearinghouse, Australian Institute of Family Studies, 2008.
[28] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p146.
[29] In Western Australia, 40% of Indigenous children were in contact with child protection services for neglect, compared to only 30% of non-Indigenous children (AIHW cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p13).
[30] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p17.
[31] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007, p17.
[32] SNAICC, Briefing to State and Territory Governments, Development of a National Action Plan and National Indigenous Children’s Well Being and Development Taskforce to prevent and respond to Indigenous child abuse and neglect, SNAICC, Victoria, 2007 p5.
[33] Close the Gap, Indigenous Health Equality Summit Statement of Intent, Canberra, 20 March 2008 (available at: http://www.hreoc.gov.au/Social_Justice/health/statement_intent.html).
[34] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997, p514-515
[35] SNAICC, Principles for justice in child well-being and protection, available at: http://www.snaicc.asn.au/policy/default.cfm?loadref=36, accessed on 11 June 2008.
[36] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for Aboriginal and Torres Strait Islander Children Policy Paper, 2005, at page 11.
[37]Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997, Standard 4: Involvement of accredited Indigenous organisations, p49.
[38] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, p 117.
[39] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, p 116.
[40] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, p 116.
[41] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997, p449.
[42] NSW Aboriginal Child Sexual Assault Taskforce, Breaking the Silence: Creating the future. Addressing child sexual assault in Aboriginal communities in NSW, NSW Attorney-General’s Department, Sydney, 2006. The West Australian Government has also reported that a high number of Aboriginal children face multiple placements. In one year 19 one-year-old Aboriginal babies had been shifted between 4 and 16 times. Amanda O’Brien, “Indigenous babies in ‘home shuffle’”, The Australian, p7, Thursday, 29 May 2008, available at: http://www.theaustralian.news.com.au/story/0,25197,23775640-5006789,00.html, accessed on 11 June 2008.
[43] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for Aboriginal and Torres Strait Islander Children, Policy Paper, SNAICC, Victoria, 2005, p1.
[44] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997, p516-517.
[45] Special Commission of Inquiry into Child Protection Services in New South Wales, Public Forum for Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF, accessed on 10 June 2008)
[46] Special Commission of Inquiry into Child Protection Services in New South Wales, Public Forum for Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF, accessed on 10 June 2008)
[47] Special Commission of Inquiry into Child Protection Services in New South Wales, Public Forum for Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF, accessed on 10 June 2008)
[48] Combined Community Legal Centres Group, “Submission to the Special Inquiry into Child Protection Services in NSW”, Sydney, March 2008 (available at: http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/CCLCG_Submission_12_03_08_3026397_Received.pdf/$file/CCLCG_Submission_12_03_08_3026397_Received.pdf, accessed on 10 June 2008).
[49] The UN Committee on the Rights of the Child has also noted the importance of “maintaining the integrity of Indigenous families and communities” and where the child is removed from the family, due regard be paid to ensuring “continuity in the child’s upbringing to his or her religious, cultural, ethnic and linguistic background. “Day of general discussion on the Rights of Indigenous Children – recommendations”, 3 October 2003, para 17, available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion/indigenouschildren.pdf, accessed on 11 June 2008.
[50] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for Aboriginal and Torres Strait Islander Children, Policy Paper, SNAICC, Victoria, 2005, p13
[51] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, Chapter 3.
[52] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, Chapter 3.
[53] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, Chapter 3.
[54] Leah Bromfield, “Trends in Child Protection Services - A National Snapshot”, National Child Protection Clearinghouse, Australian Institute of Family Studies, 2008.
[55] NSW Aboriginal Child Sexual Assault Taskforce, Breaking the Silence: Creating the future. Addressing child sexual assault in Aboriginal communities in NSW, NSW Attorney-General’s Department, Sydney, 2006.
[56] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, p140.
[57] General Comment 5: General measures of implementation for the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument, accessed on 11 June 2008.
[58] The Committee on the Rights of Child have determined these four principles contained in Articles 2, 3(1), 6 and 12 respectively, are essential to ensuring the effective implementation of the Convention on the Rights of the Child. General Comment 5: General measures of implementation for the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument, accessed on 11 June 2008.
[59]UN Convention on the Rights of the Child, 1989, Article 4
[60] U.N. General Assembly, United Nations Declaration on the Rights of Indigenous, report of the Human Rights Council, Sixty-first session, Agenda item 68, U.N. Doc. A/61/L.67, 7 September 2007.
[61] This information has been drawn mainly from Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, 2007, p19.
[62] United Nations, Frequently Asked Questions on a Human Rights-Based Approach to Development
Cooperation, United Nations, 2006, available online at: http://ohchr.org/english/about/publications/docs/FAQ_en.pdf, accessed 5 October 2007, cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005, HREOC Sydney 2007, p19.
[63] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney, p18.
[64] General Comment 5: General measures of implementation for the Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9, 37 and 39, available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument, accessed on 11 June 2008.
[65] General Comment 5: General measures of implementation for the Convention on the Rights of the Child :U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9 -10, available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument, accessed on 11 June 2008
[66] Human Rights and Equal Opportunity Commissioner and the Australian Law Reform Commission, Seen and heard, (1997), Chapter 7.