Decisions about the placement of Aboriginal children could be made based on the opinion of a single family member and an Aboriginal representative body, should new amendments to current Western Australian legislation be passed.

Debated in WA Parliament last week, the Children and Community Services Amendment Bill 2019 (WA) outlines a number of provisions many have raised concerns over, including:

  • The creation of an approved list of Aboriginal Representative Organisations (AROs) that are privy to decisions of Aboriginal child placement
  • A section that requires one member of the child’s family, an ARO and an Indigenous person deemed to have enough knowledge of the child’s situation to approve an Aboriginal child’s placement.

The Secretariat of National Aboriginal and Islander Child Care (SNAICC) and the Noongar Family Safety and Wellbeing Council (NFSWC) released a joint statement of concern condemning the legislative amendments, claiming they were in breach of not one but two United Nations human rights agreements.

“The proposed law goes against human rights principles set out in the UN Convention on the Rights of the Child and the Declaration on the Rights of Indigenous Peoples, which is supported by the Australian Government,” the statement read.

NIT spoke to Dr Hannah McGlade; Noongar woman, human rights lawyer and advisor to the Noongar Family Safety and Wellbeing Council.

“[The Bill is] not doing enough to ensure Aboriginal family engagement and Aboriginal self-determination in child protection,” Dr McGlade said.

“What’s missing in there is the kind of models that we want to see to support Aboriginal self-determination in child protection.

“We are raising the Queensland model [of Aboriginal Family-Led Decision Making] and the Victorian model [of Family Group Conferencing] as best practices.”

For Dr McGlade, the main concern is around the appropriateness of having a single member of an Aboriginal child’s family consulted.

“We want proper family engagement … [not] merely consulting one family member.”

“Family is the backbone of our life as Aboriginal people, it’s an institution that’s very high placed in non-Aboriginal society as well,” Dr McGlade said.

“When we’re talking about where a child should live … the family is obviously critically important.”

Dr McGlade said the right to self-determination would be diminished by these proposed amendments without culturally safe models.

“Aboriginal cultures, family, leadership and decision making is respected by the [UN] Conventions on the Rights of the Child … and by the UN Declaration on the Rights of Indigenous Peoples,” she said.

“That’s why we do believe this law is not consistent with the international human rights standards and principles that we’ve agreed to in Australia.”


Role of representative bodies

There have also been concerns around the role of AROs in the Bill, with WA Parliament members probing Minister for Child Protection, Simone McGurk, in Parliament last Wednesday.

“I want some clarity around the regulations that require the CEO’s approval for [an Aboriginal] representative organisation. What are the parameters for that and what examples can the Minister point to that would apply under this clause?” asked Deputy Leader of the Nationals WA and Member for Moore, Shane Love.

Minister McGurk said AROs would need to be Aboriginal community-controlled organisations (ACCOs), however this was the only requirement established as yet.

“The detail of what will meet the criteria for [AROs] will be fleshed out in the development of the regulations,” Minister McGurk responded.

Minister McGurk used Wungening Aboriginal Corporation as an example of an ACCO that is “reasonably mature in the number of services it has, in its governance and the skills it has within its remit”. The Minister did not indicate Wungening would be an approved ARO.


Greater scrutiny needed

Shadow Minister for Child Protection Nick Goiran, who sits in the Upper House, said he plans to have the legislation referred onward to the Legislation Committee should the Bill make it to the Legislative Council.

“It is my intention … to ensure that the Bill is given greater scrutiny,” Goiran said.

“I have serious concerns as to how the legislation will be implemented given that it is an existing legislative requirement … that all children in care have a care plan, yet the most recent Productivity Commission’s Report on Government Services showed that more than one in five children in care in WA do not have current case plans.”

SNAICC’s 2019 Family Matters report also found First Nations children in WA are nearly 18 times more likely to be placed in out-of-home care than non-Indigenous children—the highest rate in Australia.

Goiran also had concerns around the single family member requirement, asking how the Department would judge an “appropriate family member”, and how the Department would determine a person has appropriate knowledge of a child’s situation.

“The Minister needs to provide Parliament with more information about what constitutes ‘relevant knowledge’ and on what basis the CEO’s opinion would be formed,” Goiran said.


Exploring models

NIT understands Minister McGurk previously travelled to Queensland to see Aboriginal Family-Led Decision Making (AFLDM) in action.

Dr McGlade said the Minister was keen to emulate this model in WA, however the current amendments as they stand are not indicative of this.

“[Minister McGurk] told us that she supported AFLDM over a year ago after visiting Queensland … but now this law doesn’t reflect any support for that model,” she said.

“The power and decision making about child removal seems to be the same as always.”

In Parliament last week, Minister McGurk said AFLDM could be trialled and modelled parallel to these amendments.

“[We] have committed not to do that within these amendments … but to trial that approach, and there is nothing in the existing legislation that precludes us from doing that,” Minister McGurk said.

Department of Communities’ Assistant Director General Policy and Service Design, Helen Nys, said the Department acknowledges the current Bill doesn’t adopt AFLDM but that it “remains open to exploring such legislative changes in the future”.

“[The Department of] Communities is currently examining [AFLDM], including the legislative models used in other jurisdictions, and greatly values all practice that encourages maximum opportunity for family participation and family led processes,” Nys said.

“Significant additional work would be needed before a model of AFLDM were to be made a requirement in legislation.”

Currently, the Department has an Aboriginal Liaison Officer (ALO) at Perth Children’s Court who “assists Aboriginal families to understand and navigate their way through protection proceedings”.

“This position has been in place for less than 12 months but early indications are very positive and in some instances matters have been withdrawn from Court,” Nys said.


Time for better law

As SNAICC and NFSWC continue to advocate for the Bill’s dismissal, WA Parliament will consider the Bill in detail.

NIT understands SNAICC and NFSWC have been in discussion with WA Senator Pat Dodson’s office regarding the amendments.

When approached for comment, Senator Dodson’s office said NIT should direct their questions toward the “relevant WA State Ministers”.

Dr McGlade said the next steps now are ensuring the Bill goes to the Legislation Committee and that more community engagement is mandated as a result.

“We want better law … we need best practice models,” Dr McGlade said.

“Families are powerless here … it’s heartbreaking. Shocking.”

The Legislative Assembly is set to continue debating the Bill on Tuesday.

By Hannah Cross