Indigenous Children's Right to Participate in Law and Policy Development

Holly Doel-Mackaway

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351342636
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book presents a model for reforming and developing Indigenous related legislation and policy, not only in Australia, but also in other jurisdictions. The model provides guidance about how to seek, listen to and respond to the voices of Indigenous children and young people.

The participation of Indigenous children and young people, when carried out in a culturally and age-appropriate way and based on free, prior and informed consent, is an invaluable resource capable of empowering children and young people and informing Indigenous related legislation and policy. This project contributes to the emerging field of robust, ethically sound, participatory research with Indigenous children and young people and proposes ways in which Australian and international legislators and policymakers can implement the principle of children's participation by involving Aboriginal children and young people in the development of law and policy pertaining to their lives.

This book provides accounts from Aboriginal children and young people detailing their views on how they can be involved in law and policy development in the future. It shows the latest state of knowledge on the topic and will be of interest to researchers, academics, policymakers, legislators, and students in the fields of human rights law, children's rights, participation rights, Indigenous peoples' law, and family, child and social welfare law.

1 Demanding Aboriginal Children’s Rights

DOI: 10.4324/9781315123912-1

The Absence of Aboriginal Children’s Rights

Hannah McGlade — Noongar woman, academic and lawyer — characterises the absence of Aboriginal children’s human rights as the ‘greatest challenge’ facing Australia, advocating that there is no greater social, political, cultural and legal imperative than for Aboriginal children’s rights to be realised in Australia.¹ This presents a particularly pertinent challenge for legislators and policymakers at federal, state and territory levels, given Australia is the ‘only democratic nation in the world without a national charter of rights’.² Efforts to develop an Australian Charter of Rights have thus far been unsuccessful, and consequently there is no overarching federal legislation or constitutional provision that enshrines at the domestic level the comprehensive body of international human rights law to which Australia is a party. This is a major deficiency in the legal framework operating on the land ‘now known as Australia’³ and undermines the work towards the promotion, fulfilment and respect of Aboriginal children and young people’s human rights.⁴ The frequent, serious and ongoing breaches of Aboriginal children’s rights throughout Australia are the result of a myriad of factors, including the lack of a comprehensive national human rights instrument, systemic structural inequality and endemic discrimination against First Nations peoples.

It is a ‘cold climate for children’s rights’ globally,⁵ and bitterly so in relation to the rights of Aboriginal and Torres Strait Islander children and young people. The status of Aboriginal children and young people as citizens in the broader Australian political landscape differs vastly to their status in many Indigenous communities where, with guidance, ‘children are embraced as naturally strong and are positioned as equal members of the community, with the right to act autonomously and to make their own decisions’.⁶ As will be examined throughout this book, the impact of the Northern Territory Emergency Response (NTER)⁷ and its successor, the Stronger Future’s legislation⁸ (together referred to as the Intervention) and the institutional treatment of Indigenous and young people demonstrates that there is an ‘absence of human rights’ for Indigenous children and young people in Australia.⁹ This conclusion is supported by a range of other examples of violations of Indigenous children and young people’s rights in Australia, including the extraordinarily high rates of Indigenous youth incarceration — approximately 25 times higher than non-Indigenous youth¹⁰ — and the fact that Indigenous children are being removed from their families and from Country through child protection systems at 10 times the rate of non-Indigenous children.¹¹ This level of child removal in Aboriginal communities is unprecedented and far exceeds the rate of child removals that occurred during the period known as the Stolen Generations between 1910 and 1970 where state laws and policies supported widespread forcible removal of Aboriginal children from their families.¹² The Stolen Generations refers to the time in Australian history when approximately 100,000 Aboriginal and Torres Strait Islander children were forcibly removed from their families by state ‘welfare’ bodies and church missionaries — acts the 1997 ‘Bringing Them Home Report’ concluded were acts of genocide.¹³

1 Hannah McGlade, Our Greatest Challenge: Aboriginal Children and Human Rights (Aboriginal Studies Press, 2012). Quote taken from the book’s title.

2 George Williams and Daniel Reynolds, A Charter of Rights for Australia (UNSW Press, 4^th ed, 2017) 88.

3 Lauren Tynan and Michelle Bishop, ‘Disembodied Experts, Accountability and Refusal: An Autoethnography of Two (Ab)Original Women’ (2019) 25(2) Australian Journal of Human Rights 217, 217.

4 Rainer Frost, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ (2010) 120(4) Ethics 711.

5 Laura Lundy, ‘A Lexicon for Research on International Children’s Rights in Troubled Times’ (2019) 27(4) International Journal of Children’s Rights 595, 599.

6 Andrew Guilfoyle et al, ‘Culturally Strong Childcare Programs for Indigenous Children, Families and Communities’ (2010) 35(3) Australasian Journal of Early Childhood 68, 69, cited in Rebekah Farmer and Lyn Fasoli, ‘You’re in New Country: Learning Both Ways: Advice for Non-Indigenous Early Childhood Mentors, Trainers and Teachers’ (Booklet, TAFE NSW Western, Batchelor Institute of Indigenous Tertiary Education, TAFE Riverina Institute, Charles Sturt University, 2011) 28.

7 The following statutes give effect to the Commonwealth Government’s Northern Territory Emergency Response: Northern Territory National Emergency Response Act 2007 (Cth); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth); Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth); Appropriation (Northern Territory National Emergency Response) Act (No 1) 2007–2008 (Cth); and Appropriation (Northern Territory National Emergency Response) Act (No 2) 2007–2008 (Cth).

8 The following Commonwealth statutes comprise the Stronger Futures legislation: the Stronger Futures in the Northern Territory Act 2012 (Cth); the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth) and the Social Security Legislation Amendment Act 2012 (Cth).

9 Williams and Reynolds (n 2) 1; Sylvia Arzey and Luke McNamara, ‘Invoking International Human Rights Law in a “Rights-Free Zone”: Indigenous Justice Campaigns in Australia’ (2011) 33(3) Human Rights Quarterly 733.

10 Chris Cunneen, ‘Juvenile Justice’ in Larissa Behrendt et al (eds), Aboriginal and Torres Strait Islander Legal Relations (Oxford University Press, 2^nd ed, 2019) 72.

11 Melissa O’Donnell et al, ‘Infant Removals: The Need to Address the Over-Representation of Aboriginal Infants and Community Concerns of Another “Stolen Generation”’ (2019) 90 Child Abuse & Neglect 88.

12 Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, 1997) (‘Bringing Them Home Report’).

There are innumerable examples of not only the failure of successive Australian governments to uphold Indigenous children and young people’s human rights, but of state-sanctioned acts of violence and discrimination against Indigenous children and young people. This includes the over-incarceration and widely reported torture of Aboriginal children in Northern Territory juvenile detention¹⁴ and the suite of discriminatory laws surrounding the NTER and Stronger Futures legislation that were introduced in 2007. These are just two interconnected examples of breaches of children’s rights that evince a broader and systemic non-observance by successive state, territory and federal governments toward building legislative measures and systems that support Indigenous self-determination and the fulfilment of Aboriginal children’s rights in Australia. The United Nations Committee on the Rights of the Child (the UNCRC) has consistently condemned successive Australian governments for non-compliance with their duties to respect, promote and fulfil Indigenous children and young people’s rights¹⁵ under the Convention on the Rights of the Child (CRC).¹⁶ A brief examination of the abuse of Aboriginal children and young people in youth detention is outlined below, followed by an investigation into the link between this treatment and the case study this book is primarily focussed on: the Northern Territory Intervention.

13 Ibid ch 13; Leticia Funston and Sigrid Herring, ‘When Will the Stolen Generations End? A Qualitative Critical Exploration of Contemporary “Child Protection” Practices in Aboriginal and Torres Strait Islander Communities’ (2016) 7(1) Sexual Abuse in Australia and New Zealand 51.

14 ‘Australia’s Shame’, Four Corners (Australian Broadcasting Corporation, 25 July 2016) <http://www.abc.net.au/4corners/australias-shame-promo/7649462>; Royal Commission into the Detention and Protection of Children in the Northern Territory (Final Report, November 2017); Thalia Anthony, ‘Growing Up Surplus to Humanity: Aboriginal Children in the Northern Territory’ (2018) (51/52) Arena Journal 40, 42, 47 (‘Growing Up Surplus to Humanity’).

15 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60^th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) [38], [52](g), [60] (‘Concluding Observations on the Fourth Report’); Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019) [30f], [46], [48b] (‘Concluding Observations on the Fifth and Sixth Reports’).

16 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). One hundred and ninety-six countries are State Parties to the CRC. The United States of America is the only country that has not ratified the CRC despite signalling their intention to ratify by signing the CRC on 16 February 1995. Somalia ratified the CRC on 1 October 2015, and South Sudan acceded to the CRC on 30 April 2015. See ‘Status of Treaty: Convention on the Rights of the Child’, United Nations Treaty ...

Table of contents

• Cover
• Endorsements
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• Foreword
• Preface
• Acknowledgements
• Terminology
• Abbreviations
• 1. Demanding Aboriginal Children’s Rights
• 2. The Convention on the Rights of the Child and Children’s Participation
• 3. Rethinking Childhood and Children’s Participation
• 4. Aboriginal Children and Young People’s Views about the Northern Territory Intervention
• 5. Aboriginal Children and Young People’s Views about Participating in Law and Policy Development 1
• 6. A Model for Indigenous Children and Young People’s Participation in Public Decision-Making
• 7. Advancing Participation: Involvement not Intervention
• Bibliography
• Index