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.