Discussion Paper "Australia's Children: Safe and Well - A National Framework for Protecting Australia's Children"

Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(HREOC)

to the

DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND
INDIGENOUS AFFAIRS

on the

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

14 July 2008

Human Rights and Equal Opportunity
Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

 

• Introduction
• Summary
• Consultation on a National Framework
• Stronger Prevention Focus
• Better Collaboration between Services
• Improving responses to Indigenous children
• Attracting and Retaining the Right Workforce
• Improving Child Protection Systems
• Appendix: List of HREOC Recommendations

---

Introduction

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

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Summary

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

Recommendations

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

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Consultation on a National Framework

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

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Stronger Prevention Focus

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

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Better Collaboration between Services

Income Management

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

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

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

National
plan to reduce violence against women and children

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

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Improving responses to Indigenous children

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

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

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

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

Addressing Indigenous Disadvantage

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

A common approach
to protecting Indigenous children

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

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

A better service model to protect
Indigenous children

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

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

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

Out-of-Home Care for Indigenous Children and
Youth

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

Supporting compliance with the
Aboriginal child placement principle

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

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

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

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

Northern Territory Emergency Response
review

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

^Top

Attracting and Retaining the Right Workforce

Specific Indigenous child protection workforce strategy

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

^Top

Improving Child Protection Systems

A rights-based approach to child protection

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

^Top

Appendix: List
of HREOC Recommendations

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

^Top

---

Endnotes

^[1] HREOC is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
(‘HREOC Act’). Sections 11 and 31 of the HREOC Act set out
HREOC’s functions relating to human rights and equal opportunity in
employment respectively. HREOC also has functions under the Commonwealth Sex
Discrimination Act 1984, Racial Discrimination Act 1975, Disability
Discrimination Act 1992 and Age Discrimination Act
2004.

^[2] http://www.aph.gov.au/house/committee/jsct/4june2008/report.htm

^[3] UN Convention on the Rights of the Child, 1989, Article
19.

^[4] General Comment 5: General
measures of implementation for the Convention on the Rights of the Child, U.N.
Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008. The obligation to consult with children is further
articulated by the Committee in relation to Indigenous children in the
Committee’s “Day of general discussion on the Rights of Indigenous
Children – recommendations”, 3 October 2003, available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion/indigenouschildren.pdf,
accessed on 11 June 2008.

^[5] Leah
Bromfield, “Trends in Child Protection Services - A National
Snapshot”, National Child Protection Clearinghouse, Australian Institute
of Family Studies, 2008.

^[6] Leah
Bromfield, “Trends in Child Protection Services - A National
Snapshot”, National Child Protection Clearinghouse, Australian Institute
of Family Studies, 2008.

^[7] For an
overview of the income management schemes being introduced in these areas see,
Aboriginal and Torres Strait Islander Commissioner, Social Justice Report
2007, HREOC, Sydney, 2008, pp
268-271.

^[8] It is expected that
the jurisdiction of the QLD Commission will only cover the four Aboriginal
communities in Cape York which have agreed to participate in the Cape York
Welfare Reform Trials: Hope Vale, Aurukun, Mossman Gorge and Coen.

^[9] UN Convention on the Rights
of the Child, 1989, Article
26

^[10] This is based on
information contained in General Comment 20 on implementation of ICESCR by the
United Nations Committee on Economic, Social and Cultural Rights: UN Doc: E/C.
12/GC/20/CRP. 1, available online at:
http://www2.ohchr.org/english/bodies/cescr/comments.htm, accessed 7 January
2008, and is outlined in more detail in the Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007, HREOC
Sydney 2007, p271.

^[11] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p278.

^[12] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, p278.

^[13] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p277.

^[14] “Media Release - Data shows intervention is a disaster:
national rallies planned”, 5 June 2008, available online at http://aboriginalrightscoalition.wordpress.com/,
accessed on 10 June 2008.

^[15] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p277.

^[16] Combined Aboriginal
Organisations of the Northern Territory, A proposed emergency response and
development plan to protect Aboriginal children in the Northern Territory: A
preliminary response to the Australian Government’s proposals, 10 July
2007, p16, available online at: http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
accessed 2 November
2007.

^[17]Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, p280.

^[18] HREOC, Submission to the Green Paper on Homelessness: Which Way Home?, 4
July 2008.

^[19] Aboriginal and
Torres Strait Islander Social Justice Commissioner, Ending family violence
and abuse in Aboriginal and Torres Strait Islander communities: Key issues, HREOC, Sydney, 2006,
pp5-6.

^[20] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, pp
194-95.

^[21] Human Rights and
Equal Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families, 1997,
Sydney

^[22] House of
Representatives, Official Hansard No.1 , 2008, Wednesday, 13 February 2008,
Forty second Parliament, First Session, First Period, p167 (available online at http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf,
accessed on 10 June 2008)

^[23] Human Rights and Equal Opportunity Commission, Bringing them home: National
Inquiry into the Separation of Aboriginal and Torres Strait Islander Children
from Their Families, 1997, Sydney,
p430.

^[24] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, p116.

^[25] Cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney 2007,
p12.

^[26] Anderson P., and Wild
R., Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, Northern Territory Government, Darwin
2007, p77.

^[27] Leah Bromfield,
“Trends in Child Protection Services - A National Snapshot”,
National Child Protection Clearinghouse, Australian Institute of Family Studies,
2008.

^[28] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, p146.

^[29] In
Western Australia, 40% of Indigenous children were in contact with child
protection services for neglect, compared to only 30% of non-Indigenous children
(AIHW cited in Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2007, HREOC Sydney 2007,
p13).

^[30] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney 2007, p17.

^[31] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p17.

^[32] SNAICC, Briefing to
State and Territory Governments, Development of a National Action Plan and
National Indigenous Children’s Well Being and Development Taskforce to
prevent and respond to Indigenous child abuse and neglect, SNAICC, Victoria,
2007 p5.

^[33] Close the
Gap, Indigenous Health Equality Summit Statement of Intent, Canberra, 20
March 2008 (available at:
http://www.hreoc.gov.au/Social_Justice/health/statement_intent.html).

^[34] Human Rights and Equal
Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families, HREOC, Sydney, 1997,
p514-515

^[35] SNAICC, Principles
for justice in child well-being and protection, available at: http://www.snaicc.asn.au/policy/default.cfm?loadref=36,
accessed on 11 June 2008.

^[36] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for
Aboriginal and Torres Strait Islander Children Policy Paper, 2005, at page
11.

^[37]Human Rights and Equal
Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families, HREOC, Sydney, 1997, Standard 4: Involvement of accredited
Indigenous organisations, p49.

^[38] Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2007, HREOC Sydney, 2007, p
117.

^[39] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney, 2007, p 116.

^[40] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney, 2007, p
116.

^[41] Human Rights and Equal
Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families, HREOC, Sydney, 1997, p449.

^[42] NSW Aboriginal Child Sexual
Assault Taskforce, Breaking the Silence: Creating the future. Addressing
child sexual assault in Aboriginal communities in NSW, NSW
Attorney-General’s Department, Sydney, 2006. The West Australian
Government has also reported that a high number of Aboriginal children face
multiple placements. In one year 19 one-year-old Aboriginal babies had been
shifted between 4 and 16 times. Amanda O’Brien, “Indigenous babies
in ‘home shuffle’”, The Australian, p7, Thursday, 29
May 2008, available at: http://www.theaustralian.news.com.au/story/0,25197,23775640-5006789,00.html,
accessed on 11 June 2008.

^[43] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for
Aboriginal and Torres Strait Islander Children, Policy Paper, SNAICC,
Victoria, 2005, p1.

^[44] Human
Rights and Equal Opportunity Commission, Bringing them home: National Inquiry
into the Separation of Aboriginal and Torres Strait Islander Children from Their
Families, HREOC, Sydney, 1997,
p516-517.

^[45] Special Commission
of Inquiry into Child Protection Services in New South Wales, Public Forum for
Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF,
accessed on 10 June 2008)

^[46] Special Commission of Inquiry into Child Protection Services in New South Wales,
Public Forum for Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF,
accessed on 10 June
2008)

^[47] Special Commission
of Inquiry into Child Protection Services in New South Wales, Public Forum for
Aboriginal Communities, Sydney, 24 April 2008, p9 (available at http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/DOC080424.PDF/$file/DOC080424.PDF,
accessed on 10 June 2008)

^[48] Combined Community Legal Centres Group, “Submission to the Special Inquiry
into Child Protection Services in NSW”, Sydney, March 2008 (available at: http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/vwFiles/CCLCG_Submission_12_03_08_3026397_Received.pdf/$file/CCLCG_Submission_12_03_08_3026397_Received.pdf,
accessed on 10 June 2008).

^[49] The UN Committee on the Rights of the Child has also noted the importance of
“maintaining the integrity of Indigenous families and communities”
and where the child is removed from the family, due regard be paid to ensuring
“continuity in the child’s upbringing to his or her religious,
cultural, ethnic and linguistic background. “Day of general discussion on
the Rights of Indigenous Children – recommendations”, 3 October
2003, para 17, available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion/indigenouschildren.pdf,
accessed on 11 June 2008.

^[50] SNAICC, Achieving Stable and Culturally Strong Out of Home Care for
Aboriginal and Torres Strait Islander Children, Policy Paper, SNAICC,
Victoria, 2005, p13

^[51] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney, 2007, Chapter
3.

^[52] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney, 2007, Chapter
3.

^[53] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney, 2007, Chapter
3.

^[54] Leah Bromfield,
“Trends in Child Protection Services - A National Snapshot”,
National Child Protection Clearinghouse, Australian Institute of Family Studies,
2008.

^[55] NSW Aboriginal Child
Sexual Assault Taskforce, Breaking the Silence: Creating the future.
Addressing child sexual assault in Aboriginal communities in NSW, NSW
Attorney-General’s Department, Sydney,
2006.

^[56] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney, 2007, p140.

^[57] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008.

^[58] The Committee on the Rights of Child have determined these four principles
contained in Articles 2, 3(1), 6 and 12 respectively, are essential to ensuring
the effective implementation of the Convention on the Rights of the Child.
General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008.

^[59] UN Convention on the Rights of the Child, 1989, Article
4

^[60] U.N. General Assembly, United Nations Declaration on the Rights of Indigenous, report of the
Human Rights Council, Sixty-first session, Agenda item 68, U.N. Doc. A/61/L.67,
7 September 2007.

^[61] This
information has been drawn mainly from Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2007, HREOC Sydney,
2007, p19.

^[62] United Nations, Frequently Asked Questions on a Human Rights-Based Approach to
Development

Cooperation, United Nations, 2006, available online
at: http://ohchr.org/english/about/publications/docs/FAQ_en.pdf,
accessed 5 October 2007, cited in Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2005, HREOC Sydney 2007, p19.

^[63] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007,
HREOC Sydney, p18.

^[64] General
Comment 5: General measures of implementation for the Convention on the Rights
of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9, 37 and 39, available
at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008.

^[65] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child :U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9 -10, available
at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008

^[66] Human Rights and Equal Opportunity Commissioner and the Australian Law Reform
Commission, Seen and heard, (1997), Chapter 7.