A New Framework
An entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities. This situation has been described in the preceding chapters of this Part. State and Territory legislation, policy and practice in the areas of child welfare, care and protection, adoption and juvenile justice do not comply with the evaluation criteria established by the Inquiry (see Chapter 15).
They do not comply with the right to self-determination as applied to Indigenous peoples. In general terms, they have been developed upon an assumption that consultation and participation in service delivery are adequate responses to Indigenous needs. Even consultation has been lacking in many areas of legislative change and policy development in issues directly affecting the likelihood of removal of Indigenous children and young people from their families and communities.
The Secretariat of Aboriginal and Islander Child Care (SNAICC) submitted that the 'critical principle of the right to self-determination has been all but ignored and swept under the carpet in relation to Aboriginal families and children' (submission 309 page 31). According to SNAICC, respect for self-determination has been stronger in other areas of policy such as health and education than in relation to families and children.
State and Territory policy and practice are often affected by on racial discrimination, in particular, by indirect discrimination. The evidence presented to the Inquiry indicates that Indigenous children and young people do not receive equal treatment before the law. The juvenile justice system produces massive levels of criminalisation and incarceration of Indigenous youth. Indigenous children are grossly over-represented at each stage of child welfare intervention. Their level of over-representation increases as the degree of intervention increases, with the greatest over-representation being in out-of-home care. The failure to ensure equality before the law breaches article 26 of the International Covenant on Civil and Political Rights. It breaches article 5 of the International Convention on the Elimination of All Forms Racial Discrimination which requires States to prohibit and eliminate racial discrimination. It breaches the Racial Discrimination Act 1975 (Cth) which implements the provisions of the Convention. Article 2 of the Convention requires state parties to implement policies to eliminate racial discrimination. These policies include reviewing government legislation and practices which have the effect of creating or perpetuating racial discrimination.
Cultural renewal is another evaluation criterion established by the Inquiry. The continuing removal of Indigenous children and young people from their families and communities interferes with the enjoyment of culture, religion and language. The failure to remedy the disadvantage that leads to removal demonstrate a failure to ensure the conditions for the exercise of the right to enjoyment of cultural life and for cultural renewal.
The Aboriginal and Torres Strait Islander Social Justice Commissioner has concluded that Australian governments have been guilty of human rights abuses in relation to Indigenous children and young people and that the gross over-representation of Indigenous youth in juvenile institutions raises issues under the Convention (Dodson 1995 pages 35-38). Submissions and evidence to the Inquiry support this view.
State and Territory legislation, policy and practice violate existing or emerging human rights norms in relation to young people. Most importantly, they do not comply with the fundamental principle of eliminating the unjustified removal of Indigenous children and young people from their families and communities. These principles reflect the minimum requirements against which existing legislation, policy and practice must be evaluated.
The system of legislation, policy and service delivery dealing with children in this country is itself a structural barrier to the rights of Aboriginal children. The fragmentation of the fields of children's services, broadly speaking, is subverting and undermining the rights of Aboriginal and Torres Strait Islander children. Unless we take a national approach to legislative and policy matters regarding Aboriginal children, the situation will remain intolerable and hopelessly inadequate to deal with the present crises and certainly will be no closer to recognising the 'right of self-determination' of Aboriginal and Torres Strait Islander children (SNAICC submission 309 page 34).
Existing systems have failed miserably. Nowhere is this failure more profoundly reflected than in the inability of States and Territories to reduce the number of Indigenous children placed in care, held in police cells and sentenced to detention centres.
The starting point for a new framework is the right to self-determination. For this reason this right is discussed at some length. The framework is also built upon Australia's other human rights commitments, especially those conferring rights on Indigenous peoples and on children and young people generally.
The Inquiry supports the eventual transfer of responsibility for children's well-being to Indigenous peoples and proposes a framework for negotiating autonomy measures (Recommendation 43). It would be inappropriate and untimely for the Inquiry to pre-empt the results of these negotiations by outlining in this report the features of a self-government scheme.
Evidence to the Inquiry and substantial research findings establish conclusively the need for a fundamentally different approach if the objective of eliminating unjustified and unnecessary removal of Indigenous children from their families and communities is to be achieved. This goal is consistent with article 6 of the draft Declaration on the Rights of Indigenous Peoples.
Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext.
- The right to self-determination
- Implementing self-determination in Australia
- Implementing self-determination in other countries
The right to self-determination
Independent states long denied that their Indigenous peoples enjoy the recognised international right of all peoples to self-determination. Self-determination is a collective right exercised by peoples. States preferred to describe their Indigenous populations as minorities, reserving the term 'peoples' to describe nations and emerging post-colonial nations. However, according to the Chairperson of the United Nations Working Group on Indigenous Populations, Professor Daes, 'Indigenous groups are "peoples" in every political, social, cultural and ethnological meaning of this term' (quoted by Coulter 1995 on page 131). Indigenous leaders in Australia have also argued that Indigenous peoples in Australia are 'peoples' within the meaning of the term (Dodson 1993).
Once it is accepted that Indigenous peoples have a right of self-determination, debate surrounds the question what that right involves. Article 1 of the International Covenant on Civil and Political Rights defines the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. The Covenant is binding on Australia.
Article 27 of the Covenant provides that 'persons belonging to ... minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'. Many international legal scholars consider that article 27 implicitly recognises a right to self-government or autonomy for Indigenous peoples and other minorities when that is necessary to protect their cultural distinctiveness. Some scholars have gone further and argued that customary international law recognises a right of cultural self-determination for Indigenous peoples (Iorns 1996 page 8). One aspiration Indigenous peoples have for the draft Declaration on the Rights of Indigenous Peoples is that it will put beyond doubt their right of self-determination.
'[The] free choice of political status carries no necessary implications' (Dodson 1993 page 41). Self-government, regional autonomy and integration into an existing nation state are all possible exercises of the right. Coulter summarises what self-determination means for some Indigenous peoples.
It is clear that Indigenous leaders mean self-determination to include freedom from political and economic domination by others; self-government and the management of all their affairs; the right to have their own governments and laws free from external control; free and agreed-upon political and legal relationships with the government of the country and other governments; the right to participate in the international community as governments; and the right to control their own economic development (Coulter 1995 page 131).
Self-determination is only likely to involve secession from an existing nation state in exceptional circumstances. Professor Daes has stated that self-determination for Indigenous peoples,
... means that the existing State has the duty to accommodate the aspirations of Indigenous peoples through institutional reforms designed to share power democratically. It also means that Indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise the right to self-determination by this means and other peaceful ways, to the extent possible ... Furthermore, the right of self-determination of indigenous peoples should ordinarily be interpreted as the right to negotiate freely their status and representation in the State in which they live (quoted by Iorns 1996 on page 13).
The Working Group developed the draft Declaration on the Rights of Indigenous Peoples and governments are now discussing it through the United Nations Commission on Human Rights. 'The purpose of the present standard setting is to recognise the specificity of a numerous group which has been largely ignored by the international community. The draft declaration is essentially seeking to protect the collective rights of Indigenous peoples' (Burger and Hunt 1994 page 411). Although it will not be binding, the Declaration is significant because it has been drafted in negotiations with Indigenous peoples' representatives and reflects the aspirations of Indigenous peoples. It has been referred to as 'an historic statement of Indigenous people's rights' (Coulter 1995 page 123). Aboriginal and Torres Strait Islander peoples played an important part in the development of the draft Declaration, as did the Australian Government. It reflects more fully than any other international instrument the current goals of Indigenous peoples.
The draft Declaration affirms that Indigenous peoples have the right to self-determination. '[I]t may be said without exaggeration that all Indigenous peoples, certainly those which have participated in the drafting of the declaration, consider this right fundamental' (Burger and Hunt 1994 page 412). Other provisions in the draft Declaration apply this fundamental right to particular areas of activity. They affirm 'the right of Indigenous people to control matters affecting them' (Coulter 1995 page 128).
Article 4 provides,
Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State.
Article 31 sets out the extent of self-governing powers of Indigenous peoples.
Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
Articles 19, 20 and 23 recognise a right to autonomy or self-government and control over decisions affecting them, including a right to maintain and develop Indigenous decision-making institutions and a right to determine and develop social and economic programs affecting them and to administer those programs through Indigenous institutions.
In negotiating the draft 'practically no Indigenous representatives have spoken of a right to secede from an existing country' (Coulter 1995 page 131). According to the Aboriginal and Torres Strait Islander Social Justice Commissioner, in the Australian context '[a] threat to Australia's territorial integrity is not a necessary concomitant of self-determination' (Dodson 1993 page 52). Indeed, international law specifically rejects interference in the domestic affairs of nation states or in matters which interfere with the existing territorial integrity of nation states. '[A] people exercising their right to self-determination may choose from - and may even be confined to - a range of possible outcomes other than "independence"' (Nettheim 1988 page 119).
Governments expressed concerns during the negotiations about the relationship between self-determination and secession. Canada asserted that Indigenous self-determination 'could not be used to justify any action that would dismember or impair ... the political unity of sovereign democratic states' but it accepted a right to self-determination within those boundaries.
The Government of Canada accepts a right of self-determination for Indigenous peoples which respects the political, constitutional and territorial integrity of democratic states. In that context, exercise of the right involves negotiations between states and the various Indigenous peoples within those states to determine the political status of the Indigenous peoples involved, and the means of pursuing their economic, social and cultural development (Canadian Government 1996 page 2).
Australia played an important role in the development of the draft Declaration. Its comments on self-determination in 1995 echoed those of Canada in recognising the right.
[It means] Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians... Indigenous peoples, like all other peoples in independent states with representative government, do not have a right of secession, although they do have a right of self-determination (quoted by Iorns 1996 on page 15).
Australia sees the right of self-determination as an evolving right. It involves more than just the right of equal participation in national affairs but also includes 'preservation of culture, distinct identity and language, together with a power to take decisions over their own affairs'. In practice 'the extent of that right remains a matter of political debate, particularly where autonomy or self-government for our Indigenous people may be seen to conflict with the rights of others within the Australian community or with overall governmental responsibility to achieve particular outcomes' (quoted by Iorns 1996 on page 15).
Clearly, the implementation of self-determination is important for juvenile justice, child welfare, adoption and family law matters. It is the principle grounding a right for Indigenous people to exercise control over matters directly affecting their children, families and communities. The Indigenous perspective on self-determination provides for the development of control over these areas of social life through processes which may involve some form of autonomy or self-government. Australia's position internationally has certainly not precluded these developments. State governments too have formally supported a broad view of self-determination. For example, the Queensland Government told the Inquiry,
The essence of self-determination in this context [juvenile justice and child welfare] is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain their culture and develop it (final submission page 18).
Implementing self-determination in Australia
The Indigenous right to self-determination has been slowly accepted over the last 25 years. Although restricted interpretations of the right have applied in practice, nevertheless self-determination has been seen as critical in various State, Territory and Commonwealth laws and policies.
However, transfers of power are generally limited in scope and accompanied by resourcing of Indigenous organisations which is inadequate to allow them to fulfil their functions. Many Indigenous communities have demanded the right to exercise self-determination in the provision of services to their communities while many others already do so with limited resourcing and powers. No community has jurisdiction over matters so central to their survival as child welfare and juvenile justice.
Self-determination was a key component in the development of the Commonwealth approach to land rights legislation during the 1970s and underpinned the development of specific legislation covering Indigenous councils and associations. The establishment of ATSIC in the late 1980s and the more recent establishment of the Torres Strait Regional Authority (TSRA) further recognised the importance of self-determination in Indigenous affairs.
Discussing greater autonomy for the Torres Strait, the Chairperson of the TSRA, Gaetano Lui, stated, 'the central force behind this plan [for the TSRA] is our strong commitment to empowering our people to determine their own affairs. It is about controlling our own destiny and putting power back in the hands of our people'. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, replied, 'it is a view that fits well with the Government approach to Indigenous affairs' (Herron 1996 page 5).
States and Territories have also transferred some decision-making powers to Indigenous peoples. Hundreds of Indigenous corporations have been established across the country to provide governmental-type services to their communities. Aboriginal and Torres Strait Islander child care agencies are among these. In addition, Indigenous councils with similar powers to local governments have been established in the Northern Territory and Queensland. In South Australia Anangu Pitjantjatjaraku, an Aboriginal corporation established under the Pitjantjatjara Land Rights Act 1982 (SA), is recognised as a local governing body. Land rights legislation in some other jurisdictions have provided for the exercise of some governmental-type powers.
In WA legislation authorises the recognition of Aboriginal community councils for the purpose of making community by-laws (Aboriginal Communities Act 1979). Some 29 communities have by-law making powers, some of which relate to law and order. Recognition of community councils under the Act and approval of by-laws are at the discretion of the Minister.
In the NT Indigenous community councils exercise local government powers under the 'community government' provisions of the Local Government Act. Aboriginal local governing bodies recognised for local government funding purposes have also been established under NT and Federal incorporation legislation.
Councils on Aboriginal land in the Northern Territory are severely limited in what they can do and have to follow the rules and regulations of the NT government. The NT Government's legislation for community Government is a white-mans system and is in direct conflict with the rights of Traditional Land Owners ... He said that what the Northern Territory and Commonwealth governments were doing is to 'manage' Aboriginal people but not giving them real control. Aboriginal Councils are more accountable to the Northern Territory and Commonwealth Governments than they are to their own communities (Kumantjay Ross quoted by NT Aboriginal Constitutional Convention Report 1993 on pages 19-20).
Some decision-making power was transferred to Indigenous communities in Queensland by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984. Community councils are primarily responsible for local government services with some additional functions such as community police, community courts and management of natural resources. During the last few years the majority of councils have adopted model by-laws creating a range of offences relating to assault, property damage and alcohol-related conduct (Queensland Government final submission page 56).
There are practical and legislative limitations on the power of Queensland community councils including in the administration of justice. Community police suffer from poor training, poor facilities and high turnover rates. 'Community courts are only operating on a handful of communities at present. Their usefulness is restricted by current requirements that they operate strictly along the lines of a magistrates' Court' (Queensland Government final submission page 56). Although the by-laws passed by community councils apply to juveniles, State police typically charge juveniles under other legislation. At present 'community police have no jurisdiction to enforce offences against juveniles and community courts have no jurisdiction to hear offences against juveniles' (Queensland Government final submission page 61). There are currently no provisions to deal with child welfare matters.
The limitations of the legislative framework under which the community councils operate in Queensland was the focus of the Legislation Review Committee (1991). The Committee found that there was wide Indigenous support for communities exercising greater autonomy than was currently available and that the legislation does not provide a 'culturally appropriate structure for government' (page 1). The Committee recommended that legislation should permit Indigenous communities to develop constitutions to suit their own conditions. These constitutions could specify the type of government structure most suitable for the community and the powers the community would exercise. Communities could choose to undertake government functions for health, education and law (including the recognition of customary rights, laws and traditions and the administration of justice, police and corrections).
In 1996 the Queensland Government introduced the Alternative Governing Structures Program (AGSP) to assist communities develop decision-making structures and processes by providing funds for the development of community-based plans. The Office of Aboriginal and Torres Strait Islander Affairs assists communities in negotiating with the relevant body for their plans to be implemented (Office of Aboriginal and Torres Strait Islander Affairs 1996a). One of the strengths of the AGSP is that it applies to all Aboriginal and Torres Strait Islander communities in Queensland, including urban and semi-urban communities, and is not limited to those operating under the Community Services Acts 1984 (Office of Aboriginal and Torres Strait Islander Affairs 1996a pages 13-14).
The organisers of the NT's Aboriginal Constitutional Convention prepared a document on Aboriginal self-government which outlined some of the definitional issues and areas of potential responsibility.
- What is Aboriginal self-government?
A process of redrawing the ancestral domain through the right of Aboriginal self-government. This is a fundamental human right of Indigenous people. The inherent right of Aboriginal people to govern themselves is not beyond the capacity of the Federal Government to recognise and demarcate. It is simply creating a fairer division of the power and sovereignty...
- What does Aboriginal self-government mean?
- Greater Aboriginal self-determination and autonomy;
- Owning the design of decision making structures that are appropriate to the local situation, needs, and culture;
- Control and authority over internal affairs;
- Setting own priorities and determine policy, program design;
- Selectively taking on the delivery of services eg. education, child welfare, social services, health, policing and justice, land and resource planning and environment protection (Reynolds 1996 pages 141 and 143).
Australian governments have not fully considered the relationship between Indigenous self-determination and the federal distribution of powers. However, many Indigenous organisations have experience of local control and regional co-operation.
Aboriginal local governing bodies generally face a larger struggle to achieve equitable conditions for their communities and consequently the need for regional unity is increased. However because of the cultural value placed on local control, the regional unity is achieved without compromising the fundamental autonomy that traditional land owners have over their traditional areas.
The model is a micro-scale of federal-style distribution of powers between levels of authority. Aboriginal local governing bodies have considerable experience in making such a model work (Pitjantjatjara Council Inc 1994 page 41).
Implementing self-determination in other countries
A number of submissions to the Inquiry (ALSWA submission 127, SNAICC submission 309, Anglican Church Social Responsibilities Commission submission 525) and research commissioned by the Inquiry (Iorns 1996) drew attention to the development of Indigenous self-determination models in other countries. In these examples, self-determination for Indigenous peoples has involved the complete or partial transfer of jurisdiction for the administration of juvenile justice and child welfare. The devolution of self-government powers to Indigenous peoples in Canada has occurred in the absence of federal government recognition of an obligation at international law but rather in recognition of the desirability of the transfer in the interests of Indigenous survival and national well-being (Iorns 1996 page 21).
The decisions of Chief Justice John Marshall during the first half of the nineteenth century recognised that Indian tribes have an inherent right of tribal sovereignty and are entitled to self-government. In 1832 in Worcester v Georgia the Supreme Court struck down a series of laws enacted by the State of Georgia which would have had the effect of nullifying the Cherokee Nation's constitution and its customary law. It affirmed that, although no longer completely sovereign, Indian nations retained their inherent right to self-government. Since then Indian governments have been entitled to exercise legislative, executive and judicial powers, subject to the powers of the US Federal Government. Most Indian nations have some land on which to base their government structures and authorities (Iorns 1996 page 22).
Two developments of particular interest to this Inquiry are the Indian Child Welfare Act and tribal courts. Commonwealth legislation along the lines of the Indian Child Welfare Act 1978 has been recommended to the Inquiry in numerous submissions (see for example SNAICC submission 347, Anglican Social Responsibilities Commission submission 525 pages 9-11).
The Indian Child Welfare Act 1978 is a Federal Act passed by the US Congress in response to the American Policy Review Commission's recommendations. The Commission was established by Congress in the mid-1970s to examine, among other matters, current law and practice as it affected Indian people. The Task Force's Final Report outlined the need for Indian child welfare legislation.
The Task Force Report cites a frequently asked question: since both Indian and non-Indian systems act in the best interests of the child, what difference does it make as to who makes decisions about Indian children. The answer to the question is then set out in the Report. The difference is that these decisions are inherently biased by the cultural setting of the decision maker ... when decisions are made by non-Indian authorities (quoted by Thorne undated on page 1).
The Task Force noted the discretionary nature of child welfare interventions and the cultural judgments explicitly and implicitly made by non-Indian welfare officers when intervening in Indian families (Thorne undated page 3).
In the hearings which preceded passage of the Indian Child Welfare Act, the Congressional Committee found that Indian children are the most vital resource for the continued existence of Indian Tribes and therefore must be protected. It also found that an alarmingly high proportion of Indian families were broken up by the often unwarranted removal of children by public and private agencies and that an alarmingly high proportion of these children were placed in non-Indian homes and institutions. 'States have failed to recognise the tribal, social, and cultural standards prevailing in Indian communities and families. The Act was passed to remedy these problems' (Thorne undated page 7).
The Indian Child Welfare Act 1978 gives exclusive jurisdiction to tribal courts in child welfare proceedings about Indian children who live on or have their permanent home on a reservation. Congress can make an exception to this rule by giving jurisdiction to a State Court. State courts have joint jurisdiction with tribal courts over welfare matters which involve Indian children who do not have permanent residence on a reservation. State courts must transfer jurisdiction to tribal courts if this is requested by the parent, Indian custodian or Tribe unless one parent objects, the tribe has declined to handle the matter or the State court finds 'good cause' not to transfer the case (section 101).
If a State court has jurisdiction over a welfare matter pertaining to an Indian child the Indian Child Welfare Act sets out a number of safeguards for that child. The Indian custodian of the child and the child's Tribe can intervene and participate at any point in the proceedings and all parties have a right to examine all reports and documents filed with the court (section 102). Parties seeking orders have to demonstrate to the court that active efforts have been made to provide remedial services. The party seeking a care order has to notify the parent, Indian custodian and the child's Tribe of the proceedings (section 102(d)). The Indian custodian or Indian parent has a right to court-appointed counsel (section 102(b)). Voluntary relinquishment must be in writing and a judge must be satisfied that the terms of the agreement are understood by the parent or Indian custodian. Voluntary consent to foster care arrangements can be withdrawn at any time (section 103(a) and (b)).
Section 105 incorporates an Indian Child Placement Principle. An emergency removal of a child is permitted where the child is in imminent physical danger (section 112). In these circumstances either the case must be referred expeditiously to the tribal court or the child must be returned home.
The most litigated and debated provisions of the Indian Child Welfare Act relate to the shared jurisdiction between State and tribal courts over Indian children who live off reservations. In Mississippi Band of Choctaw Indians v Holyfield (1989) both parents were Indians and residents of the reservation. The mother gave birth to twins in a town 200 miles from the reservation. The parents both signed a consent to adoption form and 31 days after the birth a Final Decree of Adoption was issued by the Chancellor of the Court of Harrison County. No reference was made to the children's Indian status anywhere in the proceedings. The Tribe sought an order to nullify the adoption decree on the basis that under the Indian Child Welfare Act it had exclusive jurisdiction over the child. In a one page judgment the Supreme Court of Mississippi affirmed the adoption on the basis that the mother had intentionally given birth off the reserve and neither parent had lived on the reserve after the birth. On appeal the US Supreme Court found that the parents had been domiciled on the reservation at the date of birth and so the tribal court had had sole jurisdiction. The Supreme Court noted that, because three years had passed since the adoption, nullification of the adoption and separation of the twins from their adoptive parents would cause much pain. Nevertheless the Supreme Court declined to determine the matter holding instead that 'we must defer to the experience, wisdom, and compassion of the tribal courts to fashion an appropriate remedy'. The case was sent to the tribal court for determination.
The Supreme Court commented,
Tribal jurisdiction under s1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of the Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians ... In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside of their culture (page 105 reproduced in The Indian Child Welfare Handbook undated).
The Supreme Court of Utah had encapsulated much of the debate in an earlier decision cited with approval by the US Supreme Court in Holyfield.
This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognise. It is precisely in recognition of this relationship however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for non domiciliary Indian children (In re Adoption of Halloway 1986 pages 969-970).
Tribal courts were first established in 1883 as an adjunct to the process of assimilation to outlaw customary law and 'civilise' Indians. The tribal courts which operate today derive from the Indian Reorganisation Act 1934. Indian tribes were authorised to establish tribal constitutions and governments and to enact laws covering internal matters including law and order. The tribal courts could be established as part of a tribal constitution or as a part of a law and order code.1
Some 108 Indian tribes operate tribal courts, ranging from small tribes of 65 members and courts that deal with three cases annually to the Navajo nation of nearly 200,000 members and a judicial system that handles 40,000 cases annually. Not surprisingly the court systems vary dramatically 'depending upon the population of the reservation they service, the demand for services, the funding available, the extent of jurisdiction possessed by the courts, and the philosophical orientation of the tribal governments' (Canadian Royal Commission on Aboriginal Peoples 1996a page 191).
Tribal courts have broad jurisdiction, including criminal law. However, tribal criminal codes cover essentially offences falling within a summary jurisdiction. Major offences, including homicide, rape and drug offences, must be dealt with in a federal court. The Indian Civil Rights Act 1968 restricts the operation of tribal courts by limiting the penalties they can impose to a maximum fine of $US5,000 or one year in prison or both. That Act also imports into tribal law the protections of the US Bill of Rights including criminal law protections with due process guarantees.
The US tribal court system was extensively reviewed by the Manitoba Aboriginal Justice Inquiry (1991) and the Canadian Royal Commission on Aboriginal Peoples (1996a). Clear advantages and disadvantages were catalogued. On the negative side, partly as result of the way they were established, the tribal courts and the codes they enforce are not uniquely Indian. Tribal courts were a form of dispute resolution imposed by the federal government (Canadian Royal Commission on Aboriginal Peoples 1996a page 184). At the same time, the tribal court system is not simply a static creation of the federal government. It is a dynamic system which in some instances has been changing to incorporate Indigenous cultural values. The limits imposed by the federal government have not restricted the development of Indigenous justice systems. For instance, the Navajo Nation has undertaken a program over the last decade to introduce Navajo common law as the law of preference in written opinions, as a means of interpretation of codes and as the source of principles and rules. Traditional justice methods have been adapted through the introduction of a Navajo Peacemaker Court (Canadian Royal Commission on Aboriginal Peoples 1996a pages 187-191).
While acknowledging shortcomings of the tribal court system, the Commissioners of the Manitoba Aboriginal Justice Inquiry noted that American Indian tribes were committed to the preservation and expansion of their court system. The system was perceived by tribal members to be,
... more understanding of their situation, more considerate of their customs, their values and their cultures, more respectful of their unique rights and status, and likely to be more fair to them than the non-Aboriginal justice system has been. In such a situation, where the court has the inherent respect of accused and the community, the impact and effect of its decisions will be that much greater ...
All this leads us to conclude that tribal courts clearly have played a vital role in meeting the needs of American Indians for a fair, just and culturally acceptable legal system (1991 Volume 1 pages 296 and 298).
The Canadian Government has recognised Aboriginal autonomy and self-government and has made specific settlements with different Aboriginal First Nations including land claim settlements and self-government agreements. The Canadian Government announced in 1995 that it would negotiate with Aboriginal First Nations to define the exact powers to be transferred, the jurisdictions to be exercised and the nature of fiscal responsibilities (Iorns 1996 page 23).
The devolution of child welfare and criminal justice, including juvenile justice, to Aboriginal nations has occurred to some extent in a number of areas. A number of Aboriginal self-government agreements which have been negotiated, including four Yukon agreements, have explicitly included jurisdiction over child welfare matters.
A joint approach to criminal justice issues is being developed in some Aboriginal nations (Iorns 1996). As a result of the Yukon self-government agreements, the Yukon First Nations will not unilaterally exercise power over the administration of justice for at least ten years, during which time power can only be exercised subject to a separate joint justice agreement (page 25). A different approach has been taken by the Sechelt Peoples who were granted self-government under Federal legislation. The Sechelts have been granted almost total control of their affairs including their own constitution. The arrangement attempts to replace externally imposed authority with 'internally legitimised tribal authority' (ALSWA submission 127 page 221).
The Canadian Royal Commission on Aboriginal Peoples considered at length the relationship between Indigenous self-determination and the development of native criminal justice systems including juvenile justice. The Commission concluded,
The Aboriginal right of self-government encompasses the right of Aboriginal nations to establish and administer their own systems of justice, including the power to make laws within the Aboriginal nation's territory ...
The right to establish a system of justice inheres in each Aboriginal nation. This does not preclude Aboriginal communities within the nation from sharing in the exercise of this authority. It will be for the people of each Aboriginal nation to determine the shape and form of their justice system and the allocation of responsibilities within the nation (1996a page 177).
The Royal Commission report does not offer a 'blueprint' by pre-determining or circumscribing the shape of Aboriginal justice systems. The Commission recognised that Aboriginal justice initiatives have tended to be small scale and developed on an ad-hoc basis. 'Often these initiatives fight the same battles over and over again with different orders of government and with differing results and almost always operating with limited budgets and under the shadow of a pilot program mentality' (page 179). In addition the Royal Commission recognised that different Aboriginal nations and communities will have different preferences and timetables for change.
Some may wish to give priority to justice processes that take place outside the courtroom; others may see the development of an Aboriginal court system as more responsive to the problems facing them; yet others may wish to proceed along both paths simultaneously to ensure that the system works in an integrated and complementary fashion. It is not our purpose to predetermine or circumscribe choice but rather to create conceptual and legal space for these developments to occur (page 197).
The Royal Commission was primarily concerned with providing a framework for the development of Aboriginal justice systems on a more comprehensive basis. It therefore considered in detail the jurisdictional basis for establishing Aboriginal justice systems (pages 219-257). It found that Aboriginal people's inherent right of self-government is recognised and affirmed in section 35 of the Canadian Constitution Act 1982. The right is not absolute and is exercised within the framework of Canada's federal system. It encompasses the right of Aboriginal nations to establish and administer their own systems of justice including the power to make laws within the Aboriginal nation's territory (page 310).
The Royal Commission concluded that 'Aboriginal jurisdiction in relation to justice should be treated as a right; the exercise of that right should, however, be progressive and incremental, dependent upon the choice, commitment and resources of each Aboriginal nation' (page 257). The 18 recommendations on criminal justice provide a framework for facilitating the development of an Aboriginal jurisdiction. The first of these is that,
Federal, provincial and territorial governments recognize the right of Aboriginal nations to establish and administer their own systems of justice pursuant to their inherent right of self-government, including the power to make laws, within the Aboriginal nation's territory (page 312).
Other recommendations provide that Aboriginal justice systems should have a choice concerning the types of matters they will determine and which offenders will come before them. Offences and offenders not dealt with by the Aboriginal justice system would be dealt with by the non-Aboriginal justice system. Non-Aboriginal residents within Aboriginal jurisdictions should have a choice of where their case will be heard except if the offence is unique to the nation's system and is designed to protect cultural values.
The Royal Commission recommended that Aboriginal justice systems should include an appellate structure with a pan-Canadian Aboriginal appeal body. Appeals from that body would be to the Canadian Supreme Court. There should be negotiation between federal and provincial governments and Aboriginal nations for agreements to govern the nature of Aboriginal justice jurisdiction, the establishment of Aboriginal charters to supplement the Canadian Charter of Rights and Freedoms and the need to prioritise the interests of Aboriginal women and children in the development of Aboriginal justice systems.
In Canada and the United States governments have shown their willingness to depart from the culture of control which has characterised relationships between Indigenous peoples and colonial societies. The change in attitudes in the Canadian context is evident in the inter-governmental negotiations between Indigenous peoples on a regional basis. The governments of Canada through creative and inclusive federalism have recognised Indigenous Canadians' jurisdiction in a broad range of areas including those affecting children's well-being. They have also acknowledged and made a commitment to negotiating self-government on a local and regional basis with Indigenous peoples.
Given the vastly different circumstances of Aboriginal peoples throughout Canada, implementation of the inherent right cannot be uniform across the country or result in a 'one-size-fits-all' form of self-government (Government of Canada 1995 page 4).
The Canadian Government's range of negotiation options include Indigenous Canadians living on and off a land base.
Metis and Indian groups living off a land base have long professed their desire for self-government process that will enable them to fulfil their aspirations to control and influence the important decisions that affect their lives (Government of Canada 1995 page 19).
In contrast to the Canadian experience, Australian 'self-governance' models have been established within paternalistic legislative frameworks in which limited powers are delegated and functions are performed with inadequate resources, often in adverse circumstances.
Self-determination and responsibility for children
Self-determination can take many forms. It could involve a regional agreement and/or the establishment of regional authorities.2 Alternatively, it may take the form of community constitutions. It can cover a range of areas including matters dealing with children and juveniles.3 There are many possibilities from the exercise of local government style powers through to the development of State-like powers within the federal structure.
The Northern Land Council provided the Inquiry with a view of self-determination which implied full self-government.
By self-determination we mean far more than the forms of quasi-control allowed through certain government institutions such as ATSIC or community government councils in the NT. This may include special funding arrangements with Commonwealth, states and territory governments (submission 765 page 16).
Some communities or regions may see the transfer of jurisdiction covering juvenile justice, welfare and adoption as central to exercising self-government. Others may wish to work within the existing structure modified to provide legislative recognition of the right of Indigenous organisations to have the key role in the decision-making processes. The level of responsibility for children which Indigenous communities wish to take must be negotiated by the communities themselves.
Many submissions to the Inquiry supported this approach.
Self-determination [is] the right of Aboriginal people to build mechanisms within our own communities for dealing with a range of issues that everybody else deals with at the moment on our behalf.
Even if a child commits an offence within the city area or the community, we are not saying that nothing should be done with that child, but we do believe that whatever punishment, or whatever outcome of that child being picked up by police or authorities, is not a matter for the authorities or the police or the courts to deal with. It is really a matter for the Aboriginal community. Unless we are given the right and we are entrusted and given the opportunity to build up the mechanisms within our community to deal with these issues there is no end in sight ...
If we are going to break down that system there has got to be a beginning where the Aboriginal community is able to build up the mechanisms. One of the reasons why we cannot deal with it at the moment is that we have never been given the chance and we have never been resourced, we have never been given the trust, and never really had the opportunity ...
[There are] some ad hoc arrangements that take place here and elsewhere in Australia, where the department does not know what to do with our kids, when the police do not know what to do with our lads on the street, they dump them on us. Now, we try as best we can to cope with that issue, but if it was done more formally and a structure set up so the Aboriginal community can build up over a period of time our ability and our mechanisms to deal with this issue then ...It does not matter which Aboriginal child is taken away from its parents, or picked up by police or the authorities, you take them to the Aboriginal community to be dealt with and you exclude the operation of the general law.
Now, there may be some limitation on that. It depends on the severity of the issues which gave rise to the child attracting the attention of the authorities ... In the next five or ten years it may well be impossible for the Aboriginal community to deal with some youth who have been involved in some very, very serious offences and so there may be limitations on the sorts of things that we deal with, but it seems to me that should not stop negotiations taking place between the Aboriginal community and governments as to where those limitations are and how the mechanisms can be built up between and within Aboriginal communities (Michael Mansell, Tasmanian Aboriginal Centre, evidence 325).
The Aboriginal Legal Service of WA recommended 'that Local, State and Commonwealth governments facilitate the transition of identified Aboriginal communities to limited or complete self-government (or any other plan that is considered appropriate for the particular community), including any legislative reform, training, infrastructure development or provision of any other assistance that may be required' (submission 127 page 222). Tangentyere Council (NT) called for a change in the 'structural relationship of Aboriginal people to the State' (Tangentyere Council submission 542 page 4).
Link-Up (NSW) drew the Inquiry's attention to Canadian Children's Services. 'The destiny of Aboriginal children should be determined by Aboriginals as is the case in the Canadian First Nation Peoples Children's Services' (Link-Up (NSW) submission 186 page 176).
The Kimberley Land Council and Broome and Derby Working Groups (WA) both stated,
...we believe that control should be placed in the hands of Aboriginal people themselves, not government departments. Aboriginal people are in a position to assess the situation of clients and determine how best to deal with problems and can draw on their knowledge of extended families, Aboriginal tradition and culture to provide indigenous ways of dealing with crises situations (submission 345 page 28 and submission 518).
ATSIC noted that in 'both current policies, and the development of new policies in relation to Indigenous children, governments must consolidate the principles of self-determination and empowerment' (submission 684 page 42).
Before informed decisions can be made there needs to be proper negotiation between government and Indigenous communities and organisations relating to self-determination in juvenile justice, welfare and adoption matters. Communities must be in a position to make choices about what they see as suitable long-term solutions to particular issues.
There are no insurmountable constitutional, legal or administrative barriers to transferring or sharing jurisdiction. The development of night patrols in Tennant Creek and Alice Springs in the NT are practical examples of Aboriginal people taking initiatives and exercising a level of control in the maintenance of law and order. They establish that core functions can be shared to the satisfaction of Indigenous people and government authorities. These are practical examples of shared jurisdiction in maintaining law and order (Dodson 1996 pages 62-63).
In 1992 the Council of Australian Governments endorsed a 'National Commitment to Improved Outcomes in the Delivery of Programs and Services to Aboriginal Peoples and Torres Strait Islanders'. This commitment arose from an agreement by all levels of government on the need for co-ordination of delivery of programs and services to Aboriginal and Torres Strait Islander peoples. Guiding principles of this agreement are empowerment, self-determination and self-management by Aboriginal and Torres Strait Islander people. The commitment is consistent with a co-operative approach which recognises the responsibility of all levels of government for the delivery of services to Indigenous people.
States and Territories currently have responsibility for welfare and juvenile justice services to all sectors of the community. The Commonwealth has special responsibility to Indigenous people under the 'races power' in the Constitution and under human rights treaties ratified under the 'external affairs power'. Shared financial responsibility for the implementation of the recommendations of this Inquiry is required to fulfil these State, Territory and Commonwealth responsibilities. The need for proper funding was endorsed by the Social Responsibilities Commission of the Anglican Church.
It will not be possible for the Australian States to implement ... minimum standards without additional funding for training and for the support of Indigenous communities. Indigenous communities may not have the necessary expertise or resources initially to fulfil their roles in arrangements giving them more direct control over services ... control over services is not a euphemism for poor quality provision (submission 525 page 11).
The provision of funding must take cognisance of the principle of self-determination. Funding arrangements have been criticised for their excessive legality and complexity, onerous reporting provisions, failure to acknowledge organisations intellectual property. Indigenous organisations wherever possible should be the decision makers or at a minimum have primary input into funding decisions.
Other human rights
Australia has ratified many international conventions which establish human rights standards to which Australia is required to conform. Indigenous people in Australia have increasingly looked to international conventions to offer protection from discrimination and promotion of human rights (Dodson 1993).
A number of submissions called on the Inquiry to consider and incorporate the provisions of the United Nations Convention on the Rights of the Child (CROC) which was ratified by Australia in 1990. The Aboriginal Legal Service of WA noted that the Convention imposes an obligation on governments to protect the family unit, the interest of children growing up in a family where possible and the right of individuals to a family life. 'Children, like adults, have rights to freedom from arbitrary interference with family life, freedom from arbitrary detention, liberty of the person and freedom of choice of residence' (submission 127 page 359).
Article 3.1 of CROC states that 'in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'. CROC envisages that it will normally be in the child's 'best interests' to be brought up with his or her birth family and by both parents (articles 9 and 18). CROC also recognises a right of the child to inherit and participate in the culture(s) into which he or she was born and an obligation on the state to provide assistance where children are removed from their cultural environment (articles 8.1, 20, 29.1(c) and 30).
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
3. ...when considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origins exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practise his or her own religion, or to use his or her own language.
According to the ALSWA 'these principles create a double issue in regards to Aboriginal youth, in that they are to be protected both as children and as members of an Indigenous culture' (submission 127 page 360).
Article 12 of CROC recognises the child's right to have the opportunity to express his or her views in any judicial or administrative proceedings which affect him or her, provided the child is capable of forming views. The views of children should be given weight in accordance with their age and maturity.
Recommendation 43a: That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation establishing a framework for negotiations at community and regional levels for the implementation of self-determination in relation to the well-being of Indigenous children and young people (national framework legislation).
Recommendation 43b: That the national framework legislation adopt the following principles.
- That the Act binds the Commonwealth and every State and Territory Government.
- That within the parameters of the Act Indigenous communities are free to formulate and negotiate an agreement on measures best suited to their individual needs concerning children, young people and families.
- That negotiated agreements will be open to revision by negotiation.
- That every Indigenous community is entitled to adequate funding and other resources to enable it to support and provide for families and children and to ensure that the removal of children is the option of last resort.
- That the human rights of Indigenous children will be ensured.
Recommendation 43c: That the national framework legislation authorise negotiations with Indigenous communities that so desire on any or all of the following matters,
- the transfer of legal jurisdiction in relation to children's welfare, care and protection, adoption and/or juvenile justice to an Indigenous community, region or representative organisation,
- the transfer of police, judicial and/or departmental functions to an Indigenous community, region or representative organisation,
- the relationship between the community, region or representative organisation and the police, court system and/or administration of the State or Territory on matters relating to children, young people and families including, where desired by the Indigenous community, region or representative organisation, policy and program development and the sharing of jurisdiction, and/or
- the funding and other resourcing of programs and strategies developed or agreed to by the community, region or representative organisation in relation to children, young people and families.
National minimum standards
Indigenous organisations must have a key role in policy development and program delivery and in decision-making in individual cases concerning children, whether juvenile justice, child welfare or adoption, either within a self-government framework or within the existing State or Territory legal framework. The right of Indigenous peoples to self-determination requires this.
The standing of Aboriginal and Torres Strait Islander parents, families and communities to actively participate in and shape juvenile justice programs, which have such a disproportionate impact on our children, should be beyond question (Dodson 1995 page 27).
The Royal Commission into Aboriginal Deaths in Custody stressed the need for governments and Aboriginal organisations 'to negotiate together to devise strategies to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems' (Recommendation 62). The Royal Commission was not prescriptive. Instead 'a conscious decision was made not to attempt to provide a blue-print for a "perfect" system, but rather to recommend a co-operative, negotiated, community-based approach to addressing problems' (Dodson 1996 page 200). This was also the approach of the Canadian Royal Commission on Aboriginal Peoples in relation to criminal justice issues.
The approach adopted by the Inquiry is consistent with that of the Royal Commission. We recommend negotiations for nationally binding minimum standards of treatment for Indigenous children and young people. The negotiating partners should include the Commonwealth, State and Territory Governments and peak Indigenous organisations with responsibility for families and children, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Secretariat for Aboriginal and Islander Child Care (SNAICC) and the National Aboriginal and Islander Legal Services Secretariat (NAILSS), together with the Aboriginal and Torres Strait Islander Social Justice Commissioner.
The national standards legislation should be applicable to all Indigenous children whether subject to Indigenous community jurisdiction, State or Territory jurisdiction or shared jurisdiction as negotiated between the Indigenous community and the State or Territory.
In the case of children remaining under State or Territory jurisdiction or subject to shared jurisdiction, we have come to the conclusion, based on overwhelming evidence, that some provisions are essential as minima if the goals of eliminating unnecessary removals of Indigenous children from their families and communities and reversing their over-representation in child welfare and juvenile justice systems are to be achieved. Additional standards should be negotiated which are consistent with the minima recommended. Subject to the national standards legislation, individual communities, regions and representative organisations may negotiate the details of their particular relationships with the institutions of the State or Territory under Recommendation 43c.3.
The negotiation and adoption of minimum standards for juvenile justice, child welfare and adoptions applicable nationally will address the rights and needs of Indigenous children, prevent unjustified removals and provide an open framework in which Indigenous control over child welfare and juvenile justice can develop where this is desired. Minimum standards do not preclude development of higher standards in any one jurisdiction, region or community. They establish the benchmark from which particular systems can develop in ways which suit the requirements of Indigenous children and communities in different areas. This approach was advocated by the Anglican Social Responsibilities Commission.
The legislative control of child welfare and juvenile justice is in the hands of the States. The States cannot be assumed all to be of one mind, or can that mind be assumed to be of good intent. In the Social Responsibilities Commission's [SRC] view action by the Commonwealth is necessary ... Any legislation by the Commonwealth should be directed towards providing benchmarks by which State provision will be regulated (submission 525 page 10).
Under the Australian Constitution child welfare, juvenile justice and adoption have been matters within the exclusive legislative power of the States (with the Commonwealth exercising that power for the Territories until the grant of self-government). The Commonwealth's responsibility for Indigenous children's rights flows from Australia's adoption of international human rights treaties. This adoption, moreover, has expanded the Commonwealth's legislative power. Arguably the Commonwealth has constitutional power to legislate to protect Indigenous children's well-being relying on its powers to legislate with respect to external affairs and for the people of any race (Wilkinson 1994, Nicholson 1995).
National standards for Indigenous children
Recommendation 44: That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation binding on all levels of government and on Indigenous communities, regions or representative organisations which take legal jurisdiction for Indigenous children establishing minimum standards of treatment for all Indigenous children (national standards legislation).
National standards for Indigenous children under State, Territory or shared jurisdiction
Recommendation 45a: That the national standards legislation include the standards recommended below for Indigenous children under State or Territory jurisdiction or shared jurisdiction.
Recommendation 45b: That the negotiations for national standards legislation develop a framework for the accreditation of Indigenous organisations for the purpose of performing functions prescribed by the standards.
Responsibility for children
One objective of national minimum standards is the elimination of removals of Indigenous children from their families and communities consistently, in particular, with the Convention on the Rights of the Child and the right of self-determination. The standards should ensure both the human rights of Indigenous children including the best interests principle and the right of self-determination for Indigenous peoples. The development of Indigenous law and practice in accordance with existing human rights norms is recognised in the draft Declaration on the Rights of Indigenous Peoples.
Indigenous people have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights standards (article 33).
Article 9(1) of CROC requires that state parties ensure children are not separated from their families except where separation is necessary for the best interests of the child. The Genocide Convention and the draft Declaration on the Rights of Indigenous Peoples prohibit the removal of Indigenous children from their people. '[E]ven where an Aboriginal child must be separated from his or her parents in the best interests of the child, that child should not be separated from his or her culture and should be placed as close to the parents as possible' (Iorns 1996 page 6). In most cases the best interests of the child will require placement within his or her community. The right of self-determination and the elimination of removal are consistent with the requirement that the best interests of the child be served in the vast majority of cases.
Any aboriginal child growing up in Australian society today will be confronted by racism. His best weapons against entrenched prejudice are a pride in his aboriginal identity and cultural heritage, and strong support from other members of the aboriginal community. We believe that the only way in which an aboriginal child who is removed from the care of his parents can develop a strong identity and learn to cope with racism is through placement in an environment which reinforces the social and cultural values characteristic of aboriginal society. We believe that white families are unable to provide such a supportive environment (Aboriginal task group report to the First Australian Conference on Adoption 1976, relied upon by the Family Court in B and R 1995 page 605).
In the context of [high] adult mortality and high incidences of imprisonment, other social problems and a generally hostile environment we have to ensure not only that our children are taken care of, but that they also grow up with a strong belief in themselves and their people. We do this because they are the inheritors of this land, they are its guardians and we must bring them up with the same values and attitudes that we have tried to uphold (Butler 1989 page 29).
Welfare departments in all jurisdictions continue to fail Aboriginal and Torres Strait Islander children. Although they recognise the Aboriginal Child Placement Principle, they fail to consult adequately, if at all, with Indigenous families and communities and their organisations. Welfare departments frequently fail to acknowledge anything of value which Indigenous families could offer children and fail to address children's well-being on Indigenous terms.
Aboriginal families continue to be seen as the 'problem', and Aboriginal children continue to be seen as potentially 'savable' if they can be separated from the 'dysfunctional' or 'culturally deprived' environments of their families and communities. Non-Aboriginals continue to feel that Aboriginal adults are 'hopeless' and cannot be changed, but Aboriginal children 'have a chance' (Link-Up (NSW) submission 186 page 85).
The needs of Indigenous families and communities are neglected while Indigenous children continue to be disproportionately involved with 'the welfare'. Evidence to the Inquiry repeatedly indicated a community perception that the problems which result in removals need to be addressed in terms of community development. However, welfare departments continue to pathologise and individualise protection needs of Indigenous children. At the same time, recognition of past failures, under-resourcing and, in some instances, racist attitudes frequently result in a failure to intervene until the family crisis is of such proportions that separation is the most likely or even only possible course.
Indigenous communities throughout Australia gave evidence to the Inquiry of their need for programs and assistance to ensure the well-being of their children. Not a single submission to the Inquiry from Indigenous organisations saw intervention from welfare departments as an effective way of dealing with Indigenous child protection needs. Departments recognise that they need to provide culturally appropriate services but they fail to develop them.
Despite changes of names from Department of Community Welfare to the Department of Community Development to the Department of Family and Children's Services (FCS) [WA] many Aboriginal people feel that the Department has remained a welfare institution reminiscent of Native Welfare.
FCS still wields statutory control over families struggling to survive. Decisions which affect the lives of children are frequently made by staff without discussion with Aboriginal families. Many people facing crises with their families will often not seek assistance from the department because of their association with 'Welfare' who took the children away (Kimberley Land Council submission 345 page 28).
It is not surprising, given the experiences of present and earlier welfare policy and practices, that Aboriginal perceptions of the current role of DCS [NSW] remain overwhelmingly negative. Despite the employment of Aboriginal field workers most interviewees expressed suspicion of and antipathy towards, DCS. Despite changes to policy and legislation, DCS practice remains, in the opinion of those interviewed, culturally inappropriate ( Learning from the Past 1994 page 58).
Families are concerned that any contact with FACS [SA] may result in their children being removed. Hence for programs involving the well-being of Aboriginal children to be successful, they need to be managed by and operated from Aboriginal organisations (SA ACCA submission 347 page 37).
Evidence to the Inquiry confirms that Indigenous families perceive any contact with welfare departments as threatening the removal of their child. Families are reluctant to approach welfare departments when they need assistance. Where Indigenous services are available they are much more likely to be used.
Standard 1: Best interests of the child - factors
Recommendation 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.
Recommendation 46b: That the national standards legislation provide that in determining the best interests of an Indigenous child the decision maker must also consider,
- the need of the child to maintain contact with his or her Indigenous family, community and culture,
- the significance of the child's Indigenous heritage for his or her future well-being,
- the views of the child and his or her family, and
- the advice of the appropriate accredited Indigenous organisation.
Standard 2: When best interests are paramount
Recommendation 47: That the national standards legislation provide that in any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.
Standard 3: When other factors apply
Recommendation 48: That the national standards legislation provide that removal of Indigenous children from their families and communities by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort. An Indigenous child is not to be removed from his or her family and community unless the danger to the community as a whole outweighs the desirability of retaining the child in his or her family and community.
Standard 4: Involvement of accredited Indigenous organisations
Recommendation 49: 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 care and 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. In juvenile justice matters that organisation must be involved in all decisions at every stage including decisions about pre-trial diversion, admission to bail and conditions of bail.
In the context of family law, section 68L of the Family Law Act 1975 (Cth) authorises the Court to order a separate representative for the child or children in a parenting dispute. The Full Court of the Family Court in the 1994 case Re K set guidelines for when a child should normally have a separate representative. One circumstance is 'where there are real issues of cultural differences' (Lisa Young submission 816 page 8). In all cases involving Indigenous children the court must ensure that the child is represented. Representation is essential to ensure that the child's Indigenous heritage and associated needs and interests are understood by the court and properly taken into account.
The expertise of Indigenous community-controlled organisations providing services for Indigenous families and children, notably the Aboriginal and Islander Child Care Agencies (AICCAs) has been called upon by the Family Court. Separate representatives should be alert to the existence and expertise of these organisations and would be expected to consult them in every case.
Standard 5: Judicial decision making
Recommendation 50: That the national standards legislation provide that in any matter concerning a child the court must ascertain whether the child is an Indigenous child and, in every case involving an Indigenous child, ensure that the child is separately represented by a representative of the child's choosing or, where the child is incapable of choosing a representative, by the appropriate accredited Indigenous organisation.
Indigenous child placement principle
The Indigenous Child Placement Principle provides the framework for the care of Indigenous children who cannot remain with their parents. It meets both the child's best interests and the needs of the Indigenous community.
Because of the negative attitudes towards Aborigines that still exist in our community, it is inevitable that an Aboriginal child will be subjected to racial taunts by their peers and, if that child is isolated from Aboriginal family and community supports, it is most likely that he or she will develop psychological and emotional problems ... In order to cope with these issues, and others surrounding his or her Aboriginal identity, it is of paramount importance that the child remain or be placed in an Aboriginal family, preferably the natural or extended family. The child will be with people who have experienced the problems that he or she will inevitably face and be able to address them effectively (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).
This approach mirrors that adopted in Britain by the National Foster Care Association in 1989.
Denying a child's colour, being 'colour-blind', is not in the child's long-term interests. It is one way in which white carers have attempted to protect themselves and the children they care for from the reality of racism. But denial makes things worse for the child, who cannot share with their white carers the offensive and damaging racist behaviour they may experience.
Becoming familiar with black people, learning about black history and achievements, and knowing the music and language of their own culture will help the children to begin to build up an inner store of self-worth of their blackness. This will help them to combat the damage done by racism. The child or young person needs direct contact with black people who are positive about their own black identity and needs positive black role models to counteract the negative images so often presented by the media (excerpted in Gaber and Aldridge 1994 page 217).
There is a great deal of variation among jurisdictions in the wording of their Aboriginal Child Placement Principles. Chisholm commended the NSW Community Welfare Act 1987 requirement that placement contrary to the ACPP must not occur unless application of the Principle would cause detriment to the child (1988). Only Victoria and SA provide statutory recognition of the role of Aboriginal organisations. Aboriginal people have noted the importance of 'respecting law', 'keeping law strong' by making correct skin placements and recognising blood ties as well as cultural ties in defining extended family and correct placements.
Many arguments can be made in favour of entrenching the Principle and the role of AICCAs in legislation. Where procedures and policy are legislatively provided for they are more likely to be adhered to. Their implementation can be reviewed and monitored by courts. Legislative recognition facilitates standing on the part of parties who may otherwise be excluded from proceedings (for example AICCAs). Statutory recognition of a right to participate in decision making would relieve AICCAs from dependence on the goodwill of the welfare department or individual officers.
Legislation establishes a firmer and clearer foundation for lines of authority and the exercise of legitimate power (for example the demarcation of responsibilities between AICCAs and departments). It provides a sound basis for funding agencies to recognise services which require funding to fulfil functions.
Standard 6: Indigenous Child Placement Principle
Recommendation 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.
Recommendation 51b: Placement is to be made according to the following order of preference,
- 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,
- placement with a member of the child's community in a relationship of responsibility for the child according to local custom and practice,
- placement with another member of the child's community,
- placement with another Indigenous carer.
Recommendation 51c: The preferred placement may be displaced where,
- that placement would be detrimental to the child's best interests,
- the child objects to that placement, or
- no carer in the preferred category is available.
Recommendation 51d: Where placement is with a non-Indigenous carer the following principles must determine the choice of carer,
- family reunion is a primary objective,
- continuing contact with the child's Indigenous family, community and culture must be ensured, and
- the carer must live in proximity to the child's Indigenous family and community.
Recommendation 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.
Adoption for Indigenous children should be a last resort and, where it is desirable in the child's best interests, should be within the Indigenous community except when the child's best interests require some other placement. Culturally appropriate alternatives to adoption should be preferred. They include,
- custody and guardianship arrangements short of adoption,
- culturally appropriate counselling of prospective relinquishing parents and their families ensuring that alternatives are explored and adequate family support is offered to enable them to keep the child, and
- 'open adoption' which secures continuing contact between the child and his or her parents, other family members and community.
While adoption is seen as the answer for some Aboriginal children, it certainly does not represent the total answer. Aboriginal values, culture and family life provide a very different context or texture from that of the dominant society and adoption assumed different meanings against this context. If adoption law and practice is to be responsive to the particular needs of the Aboriginal community, then it must be flexible in its application and be in harmony with their family life, culture and values. Viable alternatives to legal adoption through the white system must be available so that placement of each individual child is determined by the needs of that child and his family, rather than by the straitjacket of bureaucratic procedures (Homes for Blacks 1976 page 163 reporting the collective view of Aboriginal participants at the First Australian Conference on Adoption in 1976).
When adoption is determined to be in the child's best interests, the child should remain in contact with his or her biological family and community. His or her cultural and native title entitlements and future rights and responsibilities may depend on the continuity of these ties. His or her spiritual and emotional well-being almost always does. 'Open adoption' is the most appropriate for Indigenous children (and possibly for all children). Open adoption has been variously defined.
There is no universally accepted definition of open adoption. Definitions range from 'an adoption in which the birth parent meets the adoptive parents; relinquishes all legal, moral, and nurturing rights to the child; but retains the right to continuing contact and knowledge of the child's whereabouts and welfare' to 'shar[ing] with the child why a mother would place the child for adoption' (NSW Law Reform Commission 1994 page 53).
The first definition reflects the Inquiry's intentions. In addition the child should retain the right to contact and knowledge of the biological family's whereabouts. The family as a whole, and not just the natural parents, should remain in contact. 'Family' for these purposes must be defined according to the customs and Law of the particular Indigenous community. To protect the best interests of the child the degree of contact between child and natural family would be determined ideally by agreement between the natural and adoptive families or, failing that, by court order. The advice of the relevant Indigenous child and family service agency would be invaluable in either case.
Standard 7: Adoption a last resort
Recommendation 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.
The overall picture in relation to Aboriginal juvenile justice issues remains, for the most part bleak in many areas of the State ... The reforms that have been made to the system have yet to make sustained inroads into rates of arrest and incarceration for Aboriginal children and young people (ALSWA submission 127 page 333).
Minimum standards for Indigenous juvenile justice must be founded on a number of key principles and themes, many of which have been discussed above. These include,
- legislative recognition of the need to eliminate the removal of Indigenous children and young people from their families and communities and a legislative preference for diversion of Indigenous children and young people to Indigenous bodies,
- the need for Indigenous communities and organisations to have a key role in deciding the future of individual Indigenous children and young people who become the subject of juvenile justice intervention, and
- the need for Indigenous communities and organisations to have a key role in policy development and program implementation, where they desire this.
A substantial body of literature has documented the too frequent use of arrest by police when dealing with Indigenous young people (Blagg and Wilkie 1995, Luke and Cunneen 1995). Indigenous young people are more likely to be proceeded against by way of arrest than informal mechanisms such as warnings and cautions or less intrusive mechanisms such as summonses and court attendance notices. Rules 1 and 2 aim to minimise the use of arrest and to increase the use of warnings and attendance notices (see Blagg and Wilkie 1995 page 193).
There is widespread dissatisfaction with infrequent notification to Indigenous organisations when Indigenous young people are detained and questioned by police. Failure to notify Indigenous organisations such as legal services increases the likelihood of bail being refused and of children's rights being infringed. Rule 3 requires immediate notification, Rule 4 requires that the organisation be consulted in police decision-making about whether and if so how to proceed against the young person and Rule 5 prohibits interviewing the young person unless his or her representative is present.
Rules 5-8 inclusive controlling the interrogation of Indigenous young people by police are consistent with those proposed by Blagg and Wilkie based on the Convention on the Rights of the Child (1995 pages 304-5) and with Recommendations 243 and 244 of the Royal Commission into Aboriginal Deaths in Custody. Blagg and Wilkie argued that these standards are required by CROC and should be applicable to all children and young people.
Indigenous young people are massively over-represented among young people detained in police cells. Bail refusal, inability to satisfy bail conditions, unnecessary transportation of young people from remote communities and the failure to support and utilise Indigenous alternatives to police custody are major reasons for Indigenous young people's detention in police cells. Rules 9-12 inclusive aim to reduce the disproportionate numbers of Indigenous young people refused bail, given unrealistic bail conditions and detained in police cells. In the case of bail refusal Indigenous alternatives are to be used in preference to detention in police cells.
Juvenile justice throughout Australia is moving towards two systems based on race. It is developing into two systems for two categories of offenders: those who are minor offenders and those who are serious and/or repeat offenders. Minor offenders are channeled into the various diversionary programs such as police cautioning and conferencing schemes. Serious and repeat offenders, on the other hand, become ineligible for diversionary programs and are dealt with more punitively through sentencing regimes that are more akin to adult models and in some jurisdictions include mandatory minimum terms. The segregation of treatment for 'minor' and 'serious' juvenile offenders is occurring predominantly along racial lines.
Indigenous young people are less likely to receive non-custodial sentences and more likely to be sentenced to detention. Diversion of the young person into programs designed for Indigenous children must be the preferred sentencing option in all but the most serious cases demanding a custodial penalty. There are successful Indigenous controlled diversionary programs in various jurisdictions. However, they are limited in number, under-resourced and under-utilised by the courts. Indigenous young people who are diverted are, therefore, unlikely to benefit from programs designed and delivered by their communities. As a result they are more likely to fail to complete their sentences and to receive a custodial penalty in response to breaching their non-custodial order. The Inquiry was referred to research by the University of WA's Crime Research Centre which noted that the effects of Aboriginal young people not receiving diversionary treatments or of 'failing' them are compounding.
The courts may perceive Aboriginal youth to have 'failed to respond' to diversionary options such as cautioning and family group conferences and consequently 'up-tariff' them, that is, give them a more severe disposition than justified by the current offence alone (ALSWA submission 127 page 370).
Indigenous children and young people do not receive the same benefits of diversionary options as non-Indigenous young people. Moreover, existing diversionary options are not of Indigenous making. The diversionary options in most instances are alternatives created by the non-Indigenous juvenile justice system for non-Indigenous young people. To the extent that they extend to Indigenous young people they are imposed on them and their communities. The inevitable consequence of this process is entrenched over-representation of Indigenous young people in detention centres.
Rules 13 and 14 aim to limit the sentencing options of courts to diversion into an Indigenous non-custodial program except in the most serious cases. Rule 15 requires the court to give its reasons in writing whenever a custodial sentence is imposed on an Indigenous young person.
The existing criminal justice system, anchored in a philosophy of punishment and an architecture of imprisonment, can blind us to alternative means to achieve peace and order within a framework of justice (Canadian Royal Commission on Aboriginal Peoples 1996a page 214).
Standard 8: Juvenile justice
Recommendation 53a: That the national standards legislation incorporate the following rules to be followed in every matter involving an Indigenous child or young person.
Recommendation 53b: That the national standards legislation provide that evidence obtained in breach of any of the following rules is to be inadmissible against the child or young person except at the instance of the child or young person himself or herself.
Rule 1. Warnings
Arrest and charge are actions of last resort. Subject to Rule 2, a police officer is to issue a warning, without charge, to a child or young person reasonably suspected of having committed an offence without requiring the child or young person to admit the offence and without imposing any penalty or obligation on the child or young person as a condition of issuing the warning.
Rule 2. Summons, attendance notice
A child or young person may be charged with an offence when the alleged offence is an indictable offence. The charging officer must secure the suspect's attendance at the court hearing in relation to the charge by issuing a summons or attendance notice unless the officer has a reasonable belief that the suspect is about to commit a further indictable offence or, due to the suspect's previous conduct, that the suspect may not comply with a summons or attendance notice.
Rule 3. Notification
When a child or young person has been arrested or detained the responsible officer must notify the appropriate accredited Indigenous organisation immediately of the fact of the arrest and make arrangements for the attendance of a representative of that organisation.
Rule 4. Consultation
The responsible officer, in accordance with Standard 4, must consult thoroughly and in good faith with the appropriate accredited Indigenous organisation as to the appropriate means of dealing with every child or young person who has been arrested or detained.
Rule 5. Interrogation
No suspect or witness is to be interviewed in relation to an alleged offence unless,
- a parent or person responsible for the suspect or witness is present, unless the suspect or witness refuses to be interviewed in the presence of such a person or such a person is not reasonably available,
- a legal adviser chosen by the suspect or witness or, where he or she is not capable of choosing a legal adviser, a representative of the appropriate accredited Indigenous organisation is present, and
- an interpreter is present in every case in which the suspect or witness does not speak English as a first language.
Rule 6. Caution
No suspect or witness is to be interviewed in relation to an alleged offence unless,
- the caution has been explained in private to the suspect or witness by his or her legal adviser or representative,
- the interviewing officer has satisfied himself or herself that the suspect or witness understands the caution, and
- the suspect or witness freely consents to be interviewed.
Rule 7. Withdrawal of consent
The interview is to be immediately discontinued when the suspect or witness has withdrawn his or her consent.
Rule 8. Recording
Every interview must be recorded on audio tape or audiovisual tape. The tape must include the pre-interview discussions between the suspect or witness and the interviewing officer in which the officer must satisfy himself or herself that the suspect or witness understands the caution and freely consents to be interviewed.
Rule 9. Bail
Unconditional bail is a right. The right to bail without conditions can only be varied where conditions are reasonably believed due to the suspect's past conduct to be necessary to ensure the suspect will attend court as notified. The right to bail can only be withdrawn where it is reasonably believed, due to the nature of the alleged offence or because of threats having been made by the suspect, that remand in custody is necessary in the interests of the community as a whole.
Rule 10. Bail review
The suspect has a right to have the imposition of bail conditions or the refusal of bail reviewed by a senior police officer. In every case in which the senior officer refuses to release the suspect on bail, the officer must immediately notify a magistrate, bail justice or other authorised independent person who is to conduct a bail hearing forthwith. The suspect is to be represented at that hearing by a legal adviser of his or her choice or, where incapable of choosing, by a representative of the appropriate accredited Indigenous organisation.
Rule 11. Bail hostels
When bail has been refused the suspect is to be remanded in the custody of an Indigenous bail hostel, group home or private home administered by the appropriate accredited Indigenous organisation unless this option is not available in the locality.
Rule 12. Detention in police cells
No suspect is to be confined in police cells except in extraordinary and unforeseen circumstances which prevent the utilisation of alternatives. Every suspect confined in police cells overnight is to be accompanied by an Indigenous person in a relationship of responsibility to the suspect.
Rule 13. Non-custodial sentences
Rule 14. Sentencing factors
The sentencer must take into account,
- the best interests of the child or young person,
- the wishes of the child or young person's family and community,
- the advice of the appropriate accredited Indigenous organisation,
- the principle that Indigenous children are not to be removed from their families and communities except in extraordinary circumstances, and
- Standard 3.
Rule 15. Custodial sentences
Where the sentencer, having taken into account all of the factors stipulated in Rule 14, determines that a custodial sentence is necessary, the sentence must be for the shortest appropriate period of time and the sentencer must provide its reasons in writing to the State or Territory Attorney General and the appropriate accredited Indigenous organisation. No child or young person is to be given an indeterminate custodial sentence or a mandatory sentence.
Commonwealth, State and Territory governments must ensure effective policy evaluation and monitoring of implementation. Particular attention should be paid to,
- the extent to which Indigenous children and young people are dealt with formally by police or courts in preference to referral to an Indigenous organisation for participation in a diversionary program,
- the extent to which Indigenous children and young people are dealt with by way of arrest in preference to summons or attendance notice,
- the extent to which Indigenous children and young people are held in police cells and the reasons for their detention,
- the extent and nature of bail refusal and bail conditions which cannot be met,
- the extent and nature of sentences to detention for Indigenous children and young people, and
- comparative recidivism rates between Indigenous children and young people sentenced to Indigenous community-based options compared to those sentenced to detention.
The results of these evaluations must be made public.
Although now more in tune with the Convention on the Rights of the Child, the Family Law Act 1975 (Cth) does not incorporate the child's right under article 30.
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
The Family Court in B and R stated 'we strongly agree with the importance to be attached to these rights'. These rights should be included among the principles underlying that Part of the Act dealing with children's welfare. Section 60B(2) currently sets out four principles which are described as underlying the objects of the Part unless contrary to the child's best interests. The objects of the Part are 'to ensure children receive adequate and proper parenting to help them achieve their full potential' and 'to ensure that parents fulfil their duties' (subsection 1). The four principles are,
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
The 'cultural rights' of Indigenous children should be recognised similarly in this subsection. While our recommendation refers solely to Indigenous children, it does so only because we are restrained by our terms of reference. Proper recognition of article 30 would include all children from ethnic, religious or linguistic minorities.
The Act should explicitly recognise that every Indigenous child has a need to maintain a connection with his or her Indigenous culture and heritage. Section 68F, the best interests checklist, currently invites the judge to consider whether an Indigenous child needs to maintain contact with his or her culture. In our view, the Act should direct the judge to take account of that need. Inclusion of these principles will not pre-determine a dispute in favour of the Indigenous parent since the best interests of the child remains the sole consideration.
Recommendation 54: That the Family Law Act 1975 (Cth) be amended by,
- including in section 60B(2) a new paragraph (ba) `children of Indigenous origins have a right, in community with the other members of their group, to enjoy their own culture, profess and practice their own religion, and use their own language', and
- replacing in section 68F(2)(f) the phrase `any need' with the phrase `the need of every Aboriginal and Torres Strait Islander child'.
1. The Canadian Royal Commission on Aboriginal Peoples also noted that there is another group of tribal courts known as 'traditional courts' operating among Pueblo Indians in southwest USA. They operate under inherent tribal jurisdiction and apply customary law supplemented by tribal enactments (1996a page 183).
2. For example the proposed Kimberley Regional Agreement or the Torres Strait Regional Authority.
3. For example the developments recommended by the Queensland Legislation Review Committee and the proposed Alternative Governing Structures Program.