EMRIP- Systemic failure to support wellbeing of First Nations children

A Statement by Aboriginal and Torres Strait Islander Social Justice Commissioner, Katie Kiss on Item 6

17th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

Tuesday 9 July 2024

Thank you, Madam Chair

I make this statement as Australia’s Aboriginal and Torres Strait Islander Social Justice Commissioner, on behalf of the Australian Human Rights Commission, Australia’s National Human Rights Institution.

 I thank EMRIP Members, particularly former Chair and Head of Mission, Ms Sheryl Lightfoot, Pacific Member, Ms Valmaine Toki and the support team for your country visit to Australia between 1-10 October 2023, with a particular focus on the rights of First Nations peoples from Western Australia. 

 For those of you unfamiliar with Australian geography, Western Australia is the largest - by land area - of the six states included in the Australian Commonwealth, comprising a population of a little over 2.5 million, around 90,000 of whom are First Nations people.

 I note that this visit was in response to an invitation from the Noongar Family Safety and Wellbeing Council, with a request to provide advice in relation to the “contemporary removal of Aboriginal and Torres Strait Islander children from their families and communities”.

 I acknowledge Associate Professor Hannah McGlade, First Nations Community Member and Rights Advocate from Western Australia, and Member of the United Nations Permanent Forum on Indigenous Issues.  I acknowledge the pivotal role Professor McGlade has played on advocating for the rights of women and children, particularly for those in Western Australia, but also nationally, including through her recent work on Missing, murdered and incarcerated Indigenous women in Australia.

 I would also like to acknowledge the organisations who comprise the Family Matters Campaign which issues a report card every year on the implementation of the Aboriginal and Torres Strait Islander Child Placement Principles. This report card shows that while gains have been made in some jurisdictions, all Australian states and territories have considerable work to do when it comes to the rights of First Nations families and children, Western Australia chief among them. 

And I acknowledge Australian governments who participated in this visit, and the statement provided by the WA Government in response to the visit.

 Madam Chair,

 The Australian Human Rights Commission shares the deep concerns of the Expert Mechanism, the Special Rapporteurs, the UN Committee on the Rights of the Child and the Committee on the Elimination of Racial Discrimination regarding the disproportionate impact and consistent overrepresentation by First Nations children and First Nations children with disability, in child protection and youth justice systems, and notes that Australia is yet to sign or ratify the Third Optional Protocol to the Convention on the Rights of the Child.

 National data shows that while First Nations children make up approximately 6% of all Australian children, on an average day in 2022–23, First Nations children represent 42.8% of the total number of children in out-of-home care, and are 11 times more likely to be living in out-of-home care than non-Indigenous children; they are 23 times more likely than non-Indigenous children to be under youth justice supervision; and they are 28 times more likely to be in detention.   

 Indeed, the failure of our systems to support the wellbeing of our First Nations children is a significant human rights challenge facing Australia today, and First Nations exposure to discriminatory systems that cause harm is fuelling a pipeline into negative life trajectories.

 Twenty-seven years after the publication of the Bringing Them Home report – which inquired into the forced separation of First Nations children from their families, many of its recommendations remain unimplemented. 

 The ongoing issue of child removal from First Nations families at grossly disproportionate rates in Australia is a direct result of colonisation, the cycles of poverty and trauma it has created, and the systems that it has put in place which undermine our peoples’ rights.

 I acknowledge that Australia is taking steps to reduce the rising levels of exposure, including through the appointment of National and State and Territory Children’s Commissioners, the recent announcement of a National Aboriginal and Torres Strait Islander Children’s Commissioner, and nationally agreed targets focused on First Nations wellbeing, through the National Agreement on Closing the Gap. 

However, as noted in the EMRIP advisory note, current legislative frameworks, policies and practices are not consistent with these identified outcomes, or with the Declaration on the Rights of Indigenous Peoples and require transformative change and urgent reform – that promotes First Nations self-determination on these matters, and that are informed and led by First Nations peoples.

Recommendations:

The Australian Human Rights Commission wholeheartedly support the twelve recommendations outlined within the country report, and we recommend that:

•  in accordance with its mandate, that the Expert Mechanism continue to work with Australian governments to implement the Country engagement report’s recommendations without delay. 

 Thank you