The recent federal election sent a clear message that Australians support structural reform to empower Aboriginal community voice in decisions that affect our communities, and embrace new solutions to address persistent inequalities.
This need for structural change is particularly pressing when it comes to the wellbeing of our children, and what their futures hold.
A quarter of a century after the landmark Bringing Them Home report, child protection systems continue to disproportionately remove Aboriginal children from their families.
Government's response 'disappointing'
Bringing Them Home, quoting statistics from 1993, noted that 20 per 1000 Aboriginal children were in out-of-home care, comprising 20 per cent of children in out-of-home care nationally. That rate has climbed to more than 57 per 1000, with Aboriginal children now representing more than 42 per cent of children in out-of-home care.
All governments have committed to significantly reducing the over-representation of Aboriginal children in out-of-home care as part of the National Agreement on Closing the Gap.
However, here in NSW, this has not been matched by urgent action to implement structural reforms recommended by Bringing Them Home, and the numerous reviews since, that have consistently called for recognition of self-determination, greater accountability, and re-directing efforts and investment to prevention and family preservation to heal our families rather than continuing cycles of harm.
Most recently, the 2019 Family is Culture (FIC) review report provided a clear roadmap for systemic change, following a comprehensive examination of the circumstances of more than 1,100 Aboriginal children removed by child protection authorities in 2015/16 and consultation with Aboriginal communities and other stakeholders.
The Bringing Them Home report (1997). Source: Victorian Collections
The Review made 126 recommendations for systemic change to address the over-representation of Aboriginal children in out-of-home care and promote their rights. These included legislative reforms to increase transparency and oversight, require 'active efforts' to prevent the need for removal, and strengthened safeguards such as the Aboriginal Child Placement Principle to promote the rights and wellbeing of Aboriginal children.
The NSW Government's response since 2019 has been disappointing, but also revealing, with the FIC recommendations largely reframed and absorbed into the pre-existing government-led reform agenda, deflecting the FIC Review's broader proposal for structural and legislative reform.
Given government inaction on legislative reform, other parliamentarians stepped up, introducing the Family is Culture Bill (FIC Bill) at the end of 2021 to implement many of the recommendations for legislative change.
This forced the NSW Government to reconsider their stance, pushing forward with a rushed consultation process to regain control of the reform agenda.
While Aboriginal advocates have argued for greater urgency on legislative change, the government's consultation process has raised community concerns by downplaying or omitting key findings and evidence of the FIC review that underpin the recommendations, and framing the consultation to revisit or prioritise alternatives to acting on recommendations that may not fit with the government's agenda.
Debate about the FIC Bill also revealed a worrying fault line that threatens to undermine the very foundation of the reform agenda outlined since Bringing Them Home — the recognition of Aboriginal self-determination.
The number of Aboriginal children in out-of-home care continues to rise. Source: AAP Image/Bianca De Marchi
Some of those opposed to the Bill raised fears that the reforms would enshrine a lower standard of care for Aboriginal children, leaving vulnerable children to languish in unsafe circumstances. They declared that the amendments would create "two systems", the current 'mainstream' system and a "second, lesser system" for Aboriginal children.
This resistance to reforming child protection systems to respect Aboriginal decision making regarding Aboriginal children, elevate Aboriginal perspectives, and strengthen safeguards to protect and promote the immediate and long-term wellbeing of Aboriginal children, reflects an unfounded belief that 'mainstream' approaches are not only capable but best placed, to deliver for Aboriginal children and families.
However, while raising the spectre of a 'separate lesser system', these arguments ignore the reality that the 'mainstream' child protection system they defend is, like its predecessors, already deeply discriminatory, entrenching the over-representation of Aboriginal children and families, routinely breaching their rights, and achieving poorer long-term outcomes for Aboriginal children.
They echo protectionist and assimilationist policies that directly discriminated against Aboriginal children and families, devalued the importance of Aboriginal communities and culture in the wellbeing of Aboriginal children, and asserted that non-Indigenous authorities know better than Aboriginal communities, resulting in the forced and unjustified removal of Aboriginal children from their families and communities.
Protestors during a Sorry Day rally in Sydney. Source: AAP
A broken system
Numerous reviews have found contemporary child protection systems disproportionately intervene in the lives of Aboriginal children and families. At the same time, they provide poorer access to effective supports and services for Aboriginal families, and consistently achieve poorer outcomes for Aboriginal children.
The rights of Aboriginal children, including connections to family, community and culture that are central to their development and lifelong wellbeing, are routinely neglected by child protection systems that promise to uphold them.
Established safeguards, such as the Aboriginal Child Placement Principle, are not faithfully implemented in practice. Structural inequalities built in to child protection systems and failures in policy and practice contribute to the increasing over-representation of Aboriginal children removed from their families.
Family is Culture noted that in 2017/18, 37.9 per cent of all children removed from their family in NSW were Aboriginal — the highest proportion since 2011-12. This proportion has since climbed to 46 per cent in 2020-21, with Aboriginal children removed from their families at 12 times the rate of non-Indigenous children.
Not only do these flawed arguments ignore the clear evidence that the 'one-size-fits-all' approach already creates and perpetuates an inferior system for Aboriginal children that fails to uphold their rights, they also contradict policy and practice commitments.
Through Safe and Supported: The National Framework for Protecting Australia's Children 2021-2031, all governments have committed to transforming child protection systems to address the over-representation of Aboriginal children and young people in out-of-home care.
Self-determination is acknowledged as a central principle of a transformed child protection system for Aboriginal children, and includes actively enabling Aboriginal communities to exercise authority in child protection decision making, ensuring culturally safe and effective supports for Aboriginal children to remain safely at home, designed and delivered by Aboriginal communities themselves to best serve their communities.
These commitments also promote full implementation of the Aboriginal Child Placement Principles, including elements of prevention, partnership with Aboriginal communities, placement with family and kin, the participation of Aboriginal families and communities in decision making, and ensuring Aboriginal children enjoy ongoing connection to family, community, culture and Country.
Similarly, ongoing efforts to improve casework practice by the NSW Department of Communities and Justice include a focus on respect for Aboriginal families, communities and culture.
The Practice Standards recognise that 'culture is ever-present', and directly affects engagement with and outcomes for children and families.
This is an important acknowledgement from practice leaders that failing to respect and respond to cultural difference, and imposing misaligned cultural values and assumptions on diverse communities creates alienation, undermines access to support and entrenches poorer outcomes.
If culture is ever-present, it is not just in our casework practice, but also intrinsically embedded in the legislation and policy that guides practice. As such it is not just the responsibility of practitioners on the front line, but also system administrators and parliamentarians.
As such, insisting on a 'mainstream' system that imposes non-Indigenous cultural perspectives on Aboriginal children and families while marginalising Aboriginal communities will continue to fail Aboriginal children.
Efforts to transform child protection systems by and for Aboriginal communities grounded on the principle of self-determination, as recommended by Family is Culture and reflected in the FIC Bill, won't create an inferior system for Aboriginal children. This already exists.
Rather, these reforms are essential to overcoming the disparities that already exist and that are perpetuated through current 'mainstream' approaches.
Delivering on the Closing the Gap commitments, including the target to reduce the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care by 45 per cent, requires transforming the culturally biased assumptions that underpin contemporary child protection systems, engaging with Aboriginal communities to reimagine systems and practice on foundations of self-determination and public accountability, as proposed by Family is Culture.
All governments have committed to reducing the over-representation of Aboriginal children in out-of-home care. Source: AAP
It means respecting Aboriginal culture and authority in protecting and promoting the rights and wellbeing of Aboriginal children, and reflecting this in legislation, the systems and policies that enact them, and practice with families, to achieve substantively better outcomes.
Persisting with current systems that denigrate and devalue Aboriginal communities and culture will not protect Aboriginal children, but condemn yet another generation to an inferior, discriminatory system that leaves Aboriginal children behind.
Paul Gray is a Wiradjuri man and Associate Professor at the Jumbunna Institute for Indigenous Education and Research, UTS.
