Lawlink NSW: 6. International Instruments and the Principle

6.1 Treaties, Conventions and Covenants are international instruments which give rise to rights and obligations among the countries which sign and ratify them. They set out guiding principles on issues in international law, including human rights. This Chapter looks at the rights of indigenous¹ children and the rights of indigenous people in international instruments. The most relevant international instrument in a consideration of the Principle is the United Nations Convention on the Rights of the Child (“UNCROC”).²

6.2 Two main principles referred to in these instruments raise important issues regarding the Principle: the “best interests of the child” and the principle of self-determination. These issues are discussed in relation to the Principle. When discussing the tension between the “best interests of the child” and the Principle, s 87 of the Children (Care and Protection) Act 1987 (NSW) is used by way of example, although the discussion applies broadly to all forms of the Principle.

6.3 International instruments which have been ratified by Australia do not create rights or obligations under Australian law unless the Australian Government legislates to give them effect.⁶ However, there is an acceptance that international instruments may assist courts in interpreting statutes,⁷ or developing the common law.⁸ The Commonwealth may give effect to international instruments which Australia has ratified by enacting legislation under the “external affairs” head of power in the Australian Constitution.⁹ Such legislation would also be binding on the States and Territories.

6.4 A recent case in the High Court extended the effect of international treaties in Australia. In Minister for Immigration and Ethnic Affairs v Teoh¹⁰ the High Court held that Australia’s ratification of a treaty generated a “legitimate expectation” that administrative decisions would be made in accordance with the terms of the treaty. In response, the Attorney-General and the Minister for Foreign Affairs released a joint statement which declared that no such legitimate expectation would arise from ratification of international treaties. Shortly after, the Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) was introduced into Parliament, s 5 of which affirmed that ratification of an international instrument does not give rise to a legitimate expectation that “an administrative decision will be made in conformity with the requirements of that instrument”. This bill lapsed, and has not been re-introduced.

6.5 UNCROC sets out the obligations of countries (State Parties) in relation to children. Australia ratified UNCROC on 17 December 1990, which means that Australia is obliged to comply with its terms. UNCROC sets down common standards for children throughout the world and encompasses a whole range of human rights - civil, political, economic, social and cultural. It acknowledges the primary role of the family and parents in the care and protection of children, and the obligation of the state to help them in this role and to intervene if the child is being abused or neglected.

6.6 UNCROC is guided by the principle of “best interests of the child”, which is also referred to as “the welfare principle”. Article 3(1) states that: “In all actions concerning children ... the best interests of the child shall be a primary consideration”.

6.7 Relevant sections of UNCROC are found in Appendix K. Examples of specific rights of children spelt out in UNCROC are:

6.8 According to Article 12 children who are capable of forming their own views have the right to express those views in all matters affecting them. These views must be given due weight, taking into account the age and maturity of each child.

6.9 Article 9 holds that a child can only be removed from his or her parents if it is in the child’s best interests. All interested parties have the right to participate in the proceedings, and the child has a right to maintain contact with his or her parent(s), subject to the child’s best interests. In the case of adoption, Article 21 stipulates that the paramount consideration is the “best interest of the child”.

6.10 There are a number of provisions in UNCROC which are of particular relevance in considering the Principle. The Preamble of UNCROC emphasises “the importance of the traditions and cultural values of each people for the protection and harmonious development of the child”. Therefore, decisions regarding an Aboriginal child’s welfare should be made with reference to his or her cultural context.

6.11 Article 30 and Article 20 of UNCROC refer to specific rights of indigenous children:

6.12 The Principle is consistent with the right of indigenous children to enjoy their culture with other members of their community. The Principle could also be seen as providing for cultural continuity by ensuring that, wherever possible, an Aboriginal child remains in his or her community. It could also be argued that in accordance with Article 9 of UNCROC, members of an Aboriginal child’s extended family and, possibly, Aboriginal child care organisations, as “interested parties”, should have the opportunity to participate in proceedings affecting a child’s welfare.

6.13 On 22 December 1992 the Attorney-General declared UNCROC to be an international instrument for the purposes of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).¹² This means that the rights under UNCROC fall within the definition of “human rights” in Australia. UNCROC has not yet been incorporated into Commonwealth legislation and so is not part of the domestic law of Australia. The Human Rights and Equal Opportunity Commission (“HREOC”) can, however, inquire into the Acts and practices of the Commonwealth to evaluate consistency with UNCROC. As the area of child welfare is governed by State and Territory legislation, over which HREOC has no jurisdiction, this measure is largely ineffectual in relation to the welfare of Aboriginal and Torres Strait Islander children.

6.14 Australia’s ratification of UNCROC met with more than a little scepticism from Aboriginal organisations. While the organisations were in agreement with its principles, they doubted that it would achieve any more for Aboriginal people than any of the previous instruments which Australia had ratified.¹³ Despite the scepticism, it is recognised that UNCROC is a powerful tool in advocating children’s rights. One advocate of Aboriginal children’s rights, after referring to the oppression of Aboriginal people which exists despite many other international instruments, stated:

6.15 UNCROC is also seen as a clearly expressed framework of children’s rights useful for lobbying the Australian Government to provide necessary support for Aboriginal child care organisations.¹⁵ Being a party to UNCROC also exposes Australia’s treatment of Aboriginal and Torres Strait Islander children to international scrutiny.

6.16 One mechanism for ensuring compliance with the standards set out in UNCROC is the obligation on State Parties to provide regular reports to the Committee on the Rights of the Child (“the Committee”).¹⁶ By these means the Australian Government can be held accountable for the situation of Aboriginal children in Australia. Australia’s first report to the Committee was released in December 1995, nearly three years overdue.¹⁷ The Government reported briefly but favourably on Australia’s implementation of the Principle:

6.17 Aboriginal and Torres Strait Islander people may also submit information to the Committee. Any recommendations which the Committee makes are unenforceable, although they may impinge on Australia’s international reputation.

6.18 Another potential mechanism for drawing international attention to the situation of Aboriginal children within the child welfare system in Australia is the visit of a Special Rapporteur. Special Rapporteurs are generally mandated under the Commission of Human Rights to investigate and examine State practice in the relevant field. Mr Vitit Muntarbhorn, the Special Rapporteur on Child Pornography and Child Prostitution, visited Australia in 1992 and made mention of Aboriginal children and the Principle in his Report. He recognised that the Principle had been only partly implemented at a State and Territory level, and stated that child protection calls for combined contributions at both Federal and State level.¹⁹ Such a Report lends support to Aboriginal people’s calls for national legislation for Aboriginal children, and has the potential to embarrass the Australian Government internationally.

The Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children

6.19 The Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (“the Declaration”) makes the best interests of the child the paramount consideration in all matters relating to the placement of the child outside of his or her family, in both adoption and fostering arrangements.²⁰ The Declaration was adopted by the General Assembly of the United Nations on 3 December 1986. Declarations are not considered binding in international law.

6.20 The “best interests of the child” is a primary consideration in all actions concerning children under UNCROC, and the paramount consideration for foster and adoptive placement of children under the Declaration. In Australian child welfare legislation it is a guiding principle. The meaning of “best interests of the child” has inspired much debate. A child’s need to be brought up in a stable and secure family (including extended family) environment must be balanced with the need to be safe and protected from all forms of abuse.

6.21 More complex issues are involved when the best interests of an Aboriginal or Torres Strait Islander child are being considered.²¹ The importance of protecting the child’s Aboriginal or Torres Strait Islander cultural identity and maintaining the child’s extended family and community relationships must also be taken into account in determining “best interests”.²² Furthermore, the concept of “best interests of the child” needs to be flexible to take account of Aboriginal and Torres Strait Islander approaches to child rearing. It is argued that, for Aboriginal people, the best interests of the child are interwoven with the best interests of the extended family and the community.²³

6.22 UNCROC provides some guidance in determining what is meant by the “best interests of the child” in relation to Aboriginal and Torres Strait Islander children. By stating that the child’s best interests are to be a primary consideration rather than the primary consideration, it was intended to introduce a degree of flexibility to the concept of “best interests of the child” while not detracting from the rights of children.²⁴ This has been interpreted as an indication that the best interests of the child are to be considered in the context of the Preamble and all the other rights of children expressed in UNCROC.²⁵

6.23 UNCROC contains other rights which need to be given attention in considering the best interests of an Aboriginal or Torres Strait Islander child with respect to the Principle. All children, including Aboriginal and Torres Strait Islander children, have the right to express their views in matters which concern them and to have these views heard and given due consideration.²⁶ In some instances this may override the general assumption that an Aboriginal or Torres Strait Islander child should be placed with an Aboriginal or Torres Strait Islander family.²⁷

6.24 A child also has the right to be protected from all forms of abuse.²⁸ Often protective mechanisms exist within Aboriginal communities through the positive intervention of the extended family. However, in some extended families these mechanisms may have broken down due to the levels of domestic violence and drug and alcohol abuse.²⁹ In some Aboriginal communities the level of alcoholism, domestic violence and abuse may mean that there are no appropriate placements available for Aboriginal children in need of care.³⁰ In such instances other options would need to be explored, such as Aboriginal group homes. A placement with a non-Aboriginal family which is supportive of contact with the Aboriginal community may be an appropriate option, but only after all other options have been exhausted.³¹

6.25 A consideration of the “best interests of the child” leads to a dilemma over how rigidly the Principle should be applied. Should the Principle be the paramount consideration, that is should Aboriginal and Torres Strait Islander children always be placed with Aboriginal and Torres Strait Islander people?³² Alternatively, should the “best interests of the child” be the paramount consideration, that is should the placement only ever be determined by considering the best interests of the child?³³

6.26 An example of this tension between the Principle and the “best interests of the child” is found in s 87 of the Children (Care and Protection) Act 1987 (NSW). In the following analysis, the text of s 87 will be discussed by way of example. However, the same tension is inherent in any form of the Principle.

6.27 The Children (Care and Protection) Act 1987 (NSW) has the “welfare and interests of children” as the paramount consideration.³⁴ It does not use the words “best interests of the child” but instead, s 87 refers to a situation where:

6.28 “Detrimental” seems to suggest something more than merely not being the “better” option in terms of the “best interests of the child”. There are two possible interpretations of this wording.

6.29 “Detriment” is different from “best interests of the child”. One view is that the “unusual and deliberate phrasing” of s 87 implies that even if a placement with a member of the community would be “better” for the child, if placement with the extended family is not shown to be “detrimental” then s 87 requires that the child be placed with the extended family.³⁵ This interpretation of s 87 at first seems inconsistent with notions of the “best interests of the child”. It presumes that it is in the “best interests” of an Aboriginal child to remain in the care of Aboriginal people. This interpretation is consistent with provisions in UNCROC, which articulate both the importance of traditional and cultural values to a child and the “best interests” principle.³⁶ The rights of the child expressed in UNCROC provide some guidance as to how a balance may be struck.

6.30 A presumption that it is in the “best interests” of Aboriginal children to be placed with Aboriginal people also makes sense in the context of the way Aboriginal children have previously been treated by the non-Aboriginal welfare system, and in the light of continuing prejudice against Aboriginal people. Historically, the concept of “best interests of the child” has had little room for Aboriginal standards and notions of child-rearing. Thus, introducing a standard which makes it clear that a child should be placed within the Aboriginal community unless detriment to the child’s welfare can be shown, does not detract from the concept of “best interests of the child” but instead gives substance to a rather indistinct concept.

6.31 “Detriment” is the same as the “best interests of the child”. The District Court of NSW has adopted a narrower interpretation of the interaction between the best interests of the child and the Principle. In Department of Community Services v Johnson³⁷ the Court preferred to interpret the word “detriment” in s 87 as incorporating the principle that the welfare and interests of the child are to be given paramount consideration.³⁸ Although, in saying this, Judge Graham was careful to state that “detriment” should be read to produce consistency with the overall purpose of s 87. Thus, “detriment” in s 87 should not be merely that detriment which may be considered inherent in placing an Aboriginal child into Aboriginal communities which may be “less than ideal in the way of material benefits”.³⁹

6.32 The real issue behind the “best interests of the child” is who assesses “best interests”. Non-Aboriginal people’s assessments of the “best interests” of Aboriginal children have in the past focused on material comforts and benefits. This often meant that Aboriginal children would be placed with non-Aboriginal people if it were considered that the child would be better provided for by non-Aboriginal people. However, an Aboriginal person’s assessment of the child’s best interests may well focus on different concerns. The Victorian Aboriginal Child Care Agency argues that if a child is both well loved and well cared for, the parents cannot justly be criticised for their poverty and non-material outlook.⁴⁰ There has also been a gradual rejection of material benefits as a primary consideration in determining the “best interests of the child” in family law.⁴¹

6.33 An effective way to ensure that the “best interests” principle is applied in a culturally appropriate way may be to place Aboriginal and Torres Strait Islander people in the position of decision-makers. It is consistent with principles of international law that the views of an Aboriginal or Torres Strait Islander child’s extended family and community are considered when determining the “best interests” of that child.⁴²

6.34 The International Covenant on Civil and Political Rights⁴³ (“the ICCPR”) is one of the major human rights treaties. It lists the fundamental rights and freedoms that all people should be able to enjoy. Article 27 of the ICCPR recognises the right of ethnic minorities to enjoy their own culture in community with other members of their group.⁴⁴ Removal of children from a particular ethnic group could be said to cut across this right as it removes the people through whom the culture will be perpetuated. The ICCPR entered into force for Australia on 13 November 1980.

6.35 The Draft Declaration on the Rights of Indigenous Peoples (the “Draft Declaration”)⁴⁵ has only moral force in Australia and imposes no legal obligations.⁴⁶ Article 6 of the Draft Declaration states:

6.36 This provision is somewhat stronger than the Principle, as it seems to prohibit the placement of Aboriginal children with non-Aboriginal people under any circumstance. Although, presumably, according to the latter part of the Article, an Aboriginal child could be removed if his or her right to life, physical and mental integrity, liberty and security of person were threatened in his or her family or community.

6.37 There is an evolving concept of self-determination of indigenous peoples in international law. The issue of what constitutes “self-determination” is both highly contentious and dynamic. The principle of self-determination was initially linked to the right of colonies to assert their independence. It is central to the notion that all States⁴⁷ in the United Nations are sovereign and equal. This is affirmed in Article 1 of the two main human rights instruments: the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR):

6.38 The notion of self-determination is evolving to include the rights of indigenous peoples within sovereign States. This application of self-determination involves indigenous people having the right to choose their political status within a State.⁴⁸ One view is that, as a first step, this requires indigenous people being given an appropriate form of autonomy that provides for the protection and self-control of every aspect of their lives,⁴⁹ including land rights, health care and child welfare.

6.39 The notion of self-determination is being developed in other international instruments. Relevant sections of the following instruments are found in Appendix K:

6.40 The Australian Government officially adopted a policy of self-determination for Aboriginal people in 1972. There was initial hesitancy, but the Government moved to a point where self-determination was a key concept in policy. With the change of Government in 1996, the focus in policy shifted to “self-empowerment”.⁵² The concept of “self-empowerment” was described by the Minister for Aboriginal and Torres Strait Islander Affairs as being a means to an end - social and economic equality - as opposed to “self-determination” which he regarded as merely an end in itself. Recognition of self-determination has been slower at a State and Territory level.⁵³

6.41 The principle of self-determination supports the involvement of Aboriginal and Torres Strait Islander people in the area of child welfare in Australia. The existence of Aboriginal and Torres Strait Islander Child Care Agencies (AICCAs) is seen as an expression of self-determination, and an expression of Aboriginal and Torres Strait Islander people’s right to participate fully in their children’s welfare.

6.42 National child welfare legislation dealing exclusively with Aboriginal children has been sought by Aboriginal people on the grounds of self-determination.⁵⁴ The principles of self-determination are also used to justify special measures giving attention to the special needs of indigenous children, such as the Principle.

6.43 What Aboriginal self-determination actually involves in the area of Aboriginal child welfare varies.⁵⁵ It can range from merely a requirement that government departments consult with Aboriginal and Torres Strait Islander people⁵⁶ to having Aboriginal and Torres Strait Islander people administer departmental policies and services as departmental workers.⁵⁷ Some of these approaches may only create the illusion of self-determination without affecting the structure of power and responsibility relating to child welfare. It is also argued that employing Aboriginal people as workers in government departments can effectively remove people from their communities who might otherwise have been community leaders.⁵⁸

6.44 One interpretation of self-determination which has been advocated by Aboriginal and Torres Strait Islander people involves them being able to make decisions regarding the welfare of their children within their own communities and organisations. On this approach Aboriginal and Torres Strait Islander people would also determine the mechanisms through which this decision-making power can be exercised.⁵⁹ The AICCAs are an example of such a mechanism. Ultimately control over the welfare of Aboriginal and Torres Strait Islander children would pass from government departments to Aboriginal and Torres Strait Islander people.⁶⁰ There is also a recognition of the need to empower individual communities to take control of their children’s welfare.⁶¹

6.45 The Royal Commission into Aboriginal Deaths in Custody placed stress on self-determination of Aboriginal people in dealing with the number of Aboriginal deaths in custody.⁶² The Royal Commission found that:

6.46 Whatever form Aboriginal and Torres Strait Islander self-determination takes, resources are required to sustain it. It is consistent with principles of international law that the transfer of power must be accompanied by a transfer of resources to Aboriginal and Torres Strait Islander communities.⁶⁴ To do otherwise has been described as a “cruel reform”.⁶⁵

6.47 The Principle, in most jurisdictions, refers to some form of consultation with Aboriginal and Torres Strait Islander people. This is consistent with a more “conservative” interpretation of self-determination which merely seeks to ensure that the views of Aboriginal and Torres Strait Islander people are taken into account in decision-making.⁶⁶ In some jurisdictions, this option is only considered after all others have been exhausted.⁶⁷ In all forms of the Principle, the ultimate decision-making power is given to an officer of the government department; and the role of Aboriginal and Torres Strait Islander organisations and people is advisory only. In this sense, the Principle could be described as a ruse for Aboriginal self-determination.

6.48 There is scope within the Principle for greater control to be given to Aboriginal and Torres Strait Islander communities. An interesting version of the Principle which embodies this transfer of decision-making power was recommended by the Aboriginal Children’s Research Project in 1982.⁶⁸ It envisaged that the Department of Youth and Community Services (now DOCS) and other non-Aboriginal organisations should only provide for the care of Aboriginal children in exceptional circumstances and at the request of appropriate Aboriginal organisations. According to this version of the Principle, Aboriginal organisations are ultimately responsible for the welfare of Aboriginal children.

6.49 When the Principle was first being formulated, the Working Party of the Standing Committee of Social Welfare Administrators (“the Working Party”) recognised the need for a transfer of power and responsibility to Aboriginal people regarding the care of their children. The Working Party stopped well short of recommending the devolution of functions and power to Aboriginal organisations and communities, saying only that it is a “complex issue which requires further consideration”.⁶⁹ The Working Party endorsed the principle of consultation with appropriate Aboriginal people and Aboriginal communities and organisations prior to any decision or action being taken with an Aboriginal child.⁷⁰

6.50 A sensitive and tolerant welfare administration which consults with Aboriginal and Torres Strait Islander people concerning the welfare of their children is an important step towards Aboriginal and Torres Strait Islander self-determination. However, many Aboriginal and Torres Strait Islander people would regard it as insufficient. Principles of self-determination are relied on to demand a devolution of power to Aboriginal and Torres Strait Islander people,⁷¹ to be exercised through mechanisms determined by them. Aboriginal and Torres Strait Islander organisations such as the AICCAs and the ACS are seen as examples of mechanisms which already exist. This also requires resources and other forms of support to be given to such organisations and requires a restructure of the child welfare system so that Aboriginal and Torres Strait Islander people exercise real power.

Table of contents

1. This is the term used in international law. Aboriginal and Torres Strait Islander people are indigenous people.

4. United Nations. Economic and Social Council. Commission on Human Rights. Sub-Commission on Prevention of Discrimination and Protection of Minorities. Forty-sixth session E/CN.4/Sub.2/1994/2/Add.1 (20 April 1994).

6. Koowarta v Bjelke Petersen (1982) 153 CLR 168; Kioa v West (1985) 159 CLR 550; Mabo v Queensland [No2] (1992) 175 CLR 1; Dietrich v R (1992) 177 CLR 292; Coe v Commonwealth (The Wiradjuri Claim) (1993) 68 ALJR 110; Minister for Immigration v Teoh (1995) 183 CLR 273.

7. R v Burgess; Ex parte Henry (1936) 55 CLR 608; Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Dietrich v The Queen (1992) 177 CLR 292; Minister for Immigration v Teoh (1995) 183 CLR 273; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

8. Mabo v Queensland [No2] (1992) 175 CLR 1; Jago v District Court of New South Wales (1988) 12 NSWLR 558; Dietrich v The Queen (1992) 177 CLR 292; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Western Australia v Commonwealth (1995) 183 CLR 373.

11. This echoes Article 27 of the International Covenant on Civil and Political Rights, discussed in para 6.34.

12. Australia - Joint Committee on Foreign Affairs, Defence and Trade A Review of Australia’s Efforts to Promote and Protect Human Rights (AGPS, Canberra, November 1994) at 153.

13. B Butler “Aboriginal Children 1990 and the International Convention on the Rights of the Child” (1990) 15(2) Children Australia 15 at 16.

14. B Butler “An Aboriginal View on the Convention” in P Alston and G Brennan (eds) The UN Children’s Convention and australia (Human Rights and Equal Opportunity Commisison, Canberra, 1991) 50 at 50.

15N D’Souza “An Aboriginal and Islander Perspective” (1989) 14 Australian Journal of Early Childhood 31 at 32.

17. Australia - Attorney-General’s Department Australia’s Report under the Convention on the Rights of the Child (December 1995) (“Australia’s Report under UNCROC”).

19. United Nations, Economic and Social Council Report submitted by Mr Vitit Muntarbhorn, Special Rapporteur on the Sale of Children, Report on Visit to Australia, 1992(E/CN.4/1993/67/Add.1. 9 February 1993) at 19.

21. See discussion in Chapter 3 about the “best interests of the child” in the context of child custody disputes, at paras 3.58-3.75.

22. South Australian Aboriginal Child Care Agency Adoption Policy and Practice in South Australia: ACCA Response to the Report of the Review Committee (South Australian Aboriginal Child Care Agency Forum Inc, North Adelaide, November 1986) at 3.

23. B Butler “Aboriginal Child Protection” in G Calvert, A Ford and P Parkinson (eds) The Practice of Child Protection: Australian Approaches (Hale and Iremonger, Sydney, 1992) 14 at 18. See also In the Marriage of B and R (1995) 19 FamLR 594 at 623.

24. P Alston “The Legal Framework of the Convention on the Rights of the Child” in The Rights of the Child, 91/2 Bulletin of Human Rights (United Nations, New York, 1992) 1 at 9.

25. J Eekelaar “The Importance of Thinking that Children have Rights” in P Alston, S Parker and J Seymoure (eds) Children, Rights and the Law (Clarendon Press, Oxford, 1992) 221 at 232-233.

27. For example, for some Aboriginal or Torres Strait Islander young people, contact with Aboriginal or Torres Strait Islander people may not be as important to them as being with particular non-Aboriginal people with whom they have a special relationship. For this right to be fully realised, the young person should be able to form his or her own ideas freely and have access to Aboriginal or Torres Strait Islander people to discuss issues with them.

29. These problems have been described as being intrinsically tied to the loss of cultural identity, to the breakdown of traditional family roles and respect for elders, and to the social and economic disadvantage which many Aboriginal people face in Australian society: M Sam Through Black Eyes: A Handbook of Family Violence in Aboriginal and Torres Strait Islander Communities (SNAICC, Victoria, 1991).

30. A report on Aboriginal communities in the Western Division of DOCS (NSW) found that some communities claimed the level of physical and sexual abuse of children was as high as 60%: M Smith Report on Visits to Koori Groups Across Western Division (Report to the Department of Community Services, Western Division, December 1993) at 3.

31. A view has also been expressed that it is sometimes dangerous to assume that Aboriginal foster parents are automatically the ideal family for abused Aboriginal children and that an Aboriginal child can grow up in an inappropriate Aboriginal foster family with a poor identity and shame about their Aboriginality. The assumption that Aboriginal foster parents automatically instil a sense of cultural pride in Aboriginal children has also been questioned. Submission to Research Report (Confidential).

32. Some members of the Aboriginal community have argued, in the course of preparing this Report, that the Principle should be absolute, ie; no Aboriginal child should be placed with non-Aboriginal people, as placement away from the community is always detrimental to the individual child and his or her future (both immediate and long-term) and strikes at the fabric of Aboriginal society.

33. State and Territory child welfare departments generally accept the Principle on the proviso that it is not absolute, and is subject to the “best interests of the child” in each individual case.

35. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 5.

36. UNCROC Articles 20(3) and 30: see para 6.11; and Article 3(1): see para 6.6.

37. District Court, NSW, Graham DCJ, 28 October 1992, DCC7/1992-11/1992, unreported.

40. Aboriginal Child Care Agency History and First Twelve Months of ACCA’s Operation (Victorian Aboriginal Child Care Agency, Fitzroy, 1978) at 4.

45. United Nations, Economic and Social Council. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forthy-sixth session E/CN.4Sub.2/1994/2/Add.1 (20 April 1994).

46. The text of the Draft Declaration was completed by an independent Working Group on Indigenous Populations in 1994. It is currently being considered by an intergovernmental Working Group of the Commisison on Human Rights. It still needs to move through the relevant human rights bodies of the UN before it can be adopted by the General Assembly and become a treaty. It is not binding in international law.

48. S Pritchard “The Right of Indigenous Peoples to Self-Determination under International Law” (1992) 2(55) Aboriginal Law Bulletin 4 at 6.

49. L Wong “Indigenous Peoples’ Rights: Redrawing the Boundaries between State Rights and Peoples’ Rights” (1994) 13 Social Alternatives 29 at 31.

51. This issue is discussed in relation to Aboriginal organisations at paras 7.70-7.72.

52. “Self-empowerment” was defined as involving Aboriginal and Torres Strait Islander people in planning, developing and implementing programs, enabling ownership of programs and engendering a sense of responsibility and independence: Senator the Hon John Herron, Minister for Aboriginal and Torres Strait Islander Affairs, 9th Annual Joe and Enid Lyons Memorial Lecture (October 1996).

53. The Aboriginal Children’s Research Project noted that it wasn’t until late 1981, with the establishment of the NSW Ministry for Aboriginal Affairs, that the NSW Government began to move away from assimilation as an underlying philosophy in Aboriginal affairs: NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report, Part 1, July 1982) at 29.

55. Various models of Aboriginal involvement with child welfare departments have been devised: see R Chisholm “Child Care, Aboriginal Children and Permanency Planning: A Sceptical View” in R Oxenberry (ed) Changing Families: Proceedings of Third Australian Conference on Adoption (Adelaide, May 1982) 76 at 83-84.

56. For example, Children (Care and Protection) Act 1987 (NSW) s 87 requires “consultation with ... such Aboriginal welfare organisations as are appropriate in relation to the child” regarding the foster placement of Aboriginal children. The involvement of Aboriginal and Torres Strait Islander people is only advisory and the real decision-making power still rests with the Department.

57. For example, there is a commitment in NSW by DOCS to employ Aboriginal District Officers and Community Project Officers. There is also an Aboriginal office, Gullama Aboriginal Services Centre, run by DOCS and staffed entirely by Aboriginal workers.

58. Other criticisms of this approach are that such positions may well be directing funding away from Aboriginal community organisations, which are struggling to operate effectively; and that the appointment of Aboriginal individuals to a department is not consistent with Aboriginal notions of community responsibility for Aboriginal children: R Chisholm “Aboriginal Self-Determination and Child Welfare: A Case Conference” (1982) 17 Australian Journal of Social Issues 258 at 271.

59. This is consistent with Article 20 of the Draft Declaration on the Rights of Indigenous Peoples (see Appendix K).

60. There are aspects of this model evident in NSW in the existence of the Aboriginal Legal Services and the Aboriginal Medical Service. There appears to be a willingness on the part of DOCS to devolve more responsibility to Aboriginal organisations such as ACS.

63. Australia - Royal Commission into Aboriginal Deaths in Custody National Report Volume 5 (AGPS, Canberra, 1991) at 122.

65. R Chisholm “Destined Children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 14 Aboriginal Law Bulletin 6 at 8.

66. R Chisholm “Aboriginal Self-Determination and Child Welfare: A Case Conference” (1982) 17 Australian Journal of Social Issues 258 at 271.

68. The Aboriginal Children’s Research Project’s Report into Aboriginal children in substitute care in NSW (July 1982) proposed a version of the Aboriginal Child Placement Principle which, unlike other versions of the Principle, did not include non-Aboriginal care as an option: see para 3.75.

69. Australia - Working Party of the Standing Committee of Social Welfare Administrators Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practices (October 1983) at 45 (“the “Working Party Report”).

71. R Chisholm “Destined Children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 15 Aboriginal Law Bulletin 7 at 8.