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, 1. the need of the child to maintain contact with his or her Indigenous family, community and culture, 2. the significance of the child's Indigenous heritage for his or her future well-being, 3. the views of the child and his or her family, and 4. 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, 1. 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, 2. placement with a member of the child's community in a relationship of responsibility for the child according to local custom and practice, 3. placement with another member of the child's community, 4. placement with another Indigenous carer. Recommendation 51c: The preferred placement may be displaced where, 1. that placement would be detrimental to the child's best interests, 2. the child objects to that placement, or 3. 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, 1. family reunion is a primary objective, 2. continuing contact with the child's Indigenous family, community and culture must be ensured, and 3. 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
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,
1. custody and guardianship arrangements short of adoption,
2. 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
3. `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. |
Juvenile justice
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. 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, b. 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 c. 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, a. the caution has been explained in private to the suspect or witness by his or her legal adviser or representative, b. the interviewing officer has satisfied himself or herself that the suspect or witness understands the caution, and c. 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 Custodial sentences are an option of last resort. Every child or young person convicted of an offence who, in accordance with Rule 14 cannot be dismissed without sentence, is to be sentenced to a non-custodial program administered by the appropriate accredited Indigenous organisation or by an Indigenous community willing to accept the child. The child's consent to be dealt with in this way is required. The selection of the appropriate program is to be made on the advice of the appropriate accredited Indigenous organisation and, where possible, the child's family. Rule 14. Sentencing factors The sentencer must take into account, a. the best interests of the child or young person, b. the wishes of the child or young person's family and community, c. the advice of the appropriate accredited Indigenous organisation, d. the principle that Indigenous children are not to be removed from their families and communities except in extraordinary circumstances, and e. 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,
1. 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,
2. the extent to which Indigenous children and young people are dealt with by way of arrest in preference to summons or attendance notice,
3. the extent to which Indigenous children and young people are held in police cells and the reasons for their detention,
4. the extent and nature of bail refusal and bail conditions which cannot be met,
5. the extent and nature of sentences to detention for Indigenous children and young people, and
6. 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.
Family law
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.
Family law
| Recommendation 54: That the Family Law Act 1975 (Cth)
be amended by,
1. 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 2. 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.