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The Aboriginal Child Placement Principle is Unenforceable at Law

March 13, 2018 - 16:03 -- Admin

Late last year, the Nationals member for Lyne in New South Wales was appointed assistant minister for children and families. In a tired and predictable charade, this comfortable white man appointed to a well-paid position is learning for the first time of harsh conditions in which many First Peoples live since the theft of their country. When I lived in Alice Springs in 1994-95, which was peak Mabo-scare time, it was then-Opposition leader Alexander Downer who took out his hanky while touring remote communities.

Indigenous poverty is a direct result of colonisation. There was no alcoholism, and there were no hungry children, here for 65,000 years. As Senator Malarndirri McCarthy recalled at the annual Dr Charles Perkins AO Memorial Oration in 2016, one of Dr Perkins’ key messages was to ‘never leave anyone behind’. This is not a slogan as it would be in my culture, but a central organising principle of Aboriginal societies.

Junior minister David Gillespie says he had his ‘eyes opened in the last couple of weeks’ to pervasive problems which have never been solved by comfortable white men recently appointed to well-paid positions and discovering for the first time what First Peoples have known all their lives and have tried, with staggering patience, to tell government.

He added “If a child is being raped we can’t just say it’s OK on cultural grounds.”

According to SBS (link above): ‘Dr Gillespie believes the need to keep Aboriginal children in Indigenous communities “doesn’t trump other issues’”… He believes it’s “pretty poor” only 143 of the nearly 48,000 Australian children in foster care last year had been adopted.’

In news that will surprise no-one, Channel 7 Sunrise invited two white people to comment on whether white families should be ‘allowed’ to adopt Aboriginal children. There is no law against the state placing Aboriginal children with, or being adopted by, white families, although it is difficult to tell whether the Minister understands this.

The Minister and the Media

The first task is to call out the shoddy breakfast television show Sunrise, which many Aboriginal and other people have done, as in this Twitter moments. This is not cost neutral: responding to the endless, exhausting stereotyping of Aboriginal identity has a price.

Meanwhile, the nasty Sunrise segment opens up space on other media platforms for Gillespie to repeat his message; and for it to gain traction and credibility. This has already happened with a soft interview on ABC24 asking whether ‘laws should be changed to allow’ white adoption of black children.

This means another call-out is crucial, because the premises for Gillespie’s remarks are wrong.

The peak Indigenous body National Congress of Australia’s First Peoples swiftly released a statement saying Congress

agrees that vulnerable children should be removed, but we are troubled by the knowledge from past Royal Commissions of the dangers of neglect and abuse perpetrated within institutions and of the failures of many out-of-home-care alternatives. We desperately need to know: where we are removing our children to?

There is no evidence of Aboriginal people expressing the view that child abuse should be ignored on ‘cultural grounds’. In reality, there is footage from all over the country, most recently Tennant Creek, of Aboriginal people saying the exact opposite.

So who is Gillespie talking about? Well, he did mention white child protection workers expressing fear that they will be labelled racist for removing Aboriginal children, so maybe it is them. In reality, Aboriginal children are disproportionately removed for ‘neglect’, the most flexible, shall we say, ground for removal. In contrast, non-Aboriginal children are more likely to be removed for physical or sexual abuse.

These patterns, and the ministerial and media focus on physical and sexual abuse, are in fact racist. It is a function of imposing white middle class values and standards on Aboriginal families, of ignoring and erasing the ongoing trauma of dispossession and colonisation, and a failure of empathy. It is white savourism in compound, base, and damaging forms.

This will cause more apprehension, fear, and exhausted resignation that the same fights must be fought over again just to keep Black children with Black families.

All this is broadcast to a receptively racist public who consume messages about Aboriginal deviance and neglect. The messages attack Aboriginal parents where it hurts any parent most: their children. Here is a brand new junior minister for children and young people who has chosen to stigmatise and re-traumatise and gaslight Aboriginal people, blaming the Blacks for the failures of the state, which is a terrible, terrible parent.

 

The Minister and the Law

That well-paid white men seek media attention to drive their political ambition at the expense of Aboriginal children is not new, but it never gets any less revolting. Who had heard of David Gillespie before today? Gillespie is a federal minister, but child protection is a state responsibility. So he is out of his jurisdiction, telling ABC24 he is ‘stimulating policy’ discussion. Thanks, minister.

More seriously, the NSW Children and Young People (Care and Protection) Act 1998 does not create any enforceable rights regarding placement of Aboriginal children with white or Aboriginal families. This is a little-known but important feature of the Act.

The specific exclusion of enforceable legal rights or entitlements is in s. 7 of the NSW Act:

7 What is the role of the objects and principles of this Act?

The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

This section governs Chapter 2, which includes “Aboriginal and Torres Strait Islander Principles”. The Aboriginal Child Placement Principle is an important principle, enshrining in law a preferred mode of practice – kinship care – and was hard-fought.

The principle was agreed at national level and then enacted into state and territory legislation, a not-unusual federated model. It directs social workers to seek to place Black children who are removed with family or kin first, or Aboriginal households. Placement with non-Aboriginal families is a last resort.

There are similar provisions in s. 10A with regard to prospective adoption of Aboriginal children. Yet the Minister, while tending to conflate out-of-home (foster) care with adoption – which are very different prospects, for children, family, and carers – generated multiple headlines shouting Let White Families Adopt Aboriginal Children – Minister.

Where are we then?

There is no law to be changed, because there is no law barring placement of Aboriginal children with white families. No child protection worker has ever faced legal consequences, whether under the Racial Discrimination Act 1975 (Cth) or any other statute, for breaching the Aboriginal Child Placement Principle, because the Act which contains the Principle specifically rules out the possibility of creating or conferring any ‘right or entitlement enforceable at law’.

The remarks by the minister (whether thoughtless, ignorant, malicious) create the impression that Aboriginal families are uniquely deviant or incapable – when they have successfully raised their children and passed on their knowledge for a longer continuous period than any Peoples on earth. The errors of law and fact implied or stated by the Minister have been enthusiastically repeated, first by the odious Sunrise and then by the rest as space opens up in its racist wake.

Like many who enjoy the same demographic privilege, the junior minister for children and families appears to have strolled into his quarter-million-dollar per annum position with an alarming lack of knowledge, experience, and empathy. At the same time, he has achieved several goals of most politicians – got his mug on the telly, lifted his name recognition, stamped his brand of paternalism on his portfolio – at the expense of Aboriginal children, young people, parents, families, and communities.