17.92 The Commonwealth has a responsibility under the Constitution for Indigenous people, including children involved in care and protection systems throughout Australia. While Indigenous people in Australia are the most disadvantaged on any indicators, the significant over-representation of Indigenous children in care compounds that disadvantage. In its discussion paper Our Children, Our Culture, In Our Hands, the Secretariat of National Aboriginal and Islander Child Care noted that a contributing factor to the level of abuse and neglect of Indigenous children is
…the continued destabilisation process being experienced on a daily basis by Aboriginal families and their children. This destabilisation process has its roots in the previous policies associated with assimilation [and] integration which have proven to have had far reaching effects. Many of which are still apparent today.
In The Commonwealth’s Role in Preventing Child Abuse, the AIFS also noted
…the history of Aboriginal and Torres Strait Islander claims to equity and recognition as indigenous peoples, gives their communities a special claim to control the child protection, and child abuse prevention strategies of the States.
In addition, the National Inquiry into the Separation of Aboriginal and Torres Strait Islanders From Their Families detailed the devastating effects of past and current mechanisms for separating Indigenous children from their families. In recognition of the troubled relationship between Indigenous people and the care and protection system, the federal Government provides funding for the Secretariat of National Aboriginal and Islander Child Care. This secretariat coordinates the activities of Aboriginal and Islander child care agencies nationally.
17.93 There is widespread acceptance, and in some cases legislative recognition, of the Aboriginal Child Placement Principle. This principle requires that Indigenous children who cannot be cared for by their parents should be placed within their extended family or community, or at least with an Indigenous family. To implement this policy, Aboriginal and Islander care agencies in most jurisdictions assist in decisions as to the placement of Indigenous children. In Townsville, for example, the Aboriginal and Islander Child Care Agency is a member of the multidisciplinary interviewing and investigation team and in Alice Springs the Central Australian Aboriginal Child Care Agency is a permanent member of the child protection team. However, the placement principle is not always followed and the care agencies are sometimes not involved in placement decisions concerning Indigenous children. Legislative recognition of the placement principle would ensure that it is followed by decision-makers when considering the formal out-of-home placement of Indigenous children.
17.94 Despite the Aboriginal Child Placement Principle, some submissions to the Inquiry were critical of the response of care and protection systems to the needs of children in Indigenous communities. The three main criticisms were that some workers in family services departments hold racist attitudes, that there remains a lack of consultation with the communities concerned and that sufficient account is not taken of Indigenous child rearing practices when considering whether an Indigenous child has been neglected. The National Inquiry into the Separation of Aboriginal and Torres Strait Islanders From Their Families dealt extensively with the treatment of Indigenous families by care and protection systems.
Recommendation 184 The national care and protection standards should require that
the Aboriginal Child Placement Principle and the essential role of Aboriginal and Islander Child Care Agencies be enshrined in legislation in all States and Territories
all family services department workers receive appropriate information and training in cross-cultural awareness, including information and training on the differing child rearing practices of Indigenous communities.
Recommendation 185 The Minister for Aboriginal and Torres Strait Islander Affairs should prepare and release regular reports on
the current policies and practices of, as well as best practice guidelines for, State and Territory family services departments concerning investigation, assessment and case management of referrals for Indigenous children
the operation of Aboriginal and Islander child care agencies, including the funding levels required for their effective operation
prevention programs aimed at Indigenous communities.
Implementation. Such reports could be prepared in consultation with OFC and the Secretariat of National Aboriginal and Islander Child Care.
Children from non-English speaking backgrounds
17.95 Children from families in which one or both parents were migrants to Australia are not noticeably over-represented in the available statistics on care and protection. However, accepted notions of what constitutes abuse or neglect may vary markedly between different cultural and ethnic communities, particularly in relation to acceptable standards of discipline.
17.96 In 1996 the Department of Health and Family Services commissioned a Proposed Plan of Action for the Prevention of Abuse and Neglect of Children from non-English Speaking Backgrounds. The Australian Arabic Welfare Association has produced an excellent resource kit entitled Like Engraving in Stone to educate family services department workers on parenting issues and notions of abuse and neglect in the Arabic community and Arabic parents on these issues in the broader community. As far as the Inquiry is aware there are very few other programs on developing cross-cultural awareness in care and protection. Education and awareness campaigns concerning child abuse and neglect appropriately directed towards the major ethnic and cultural communities in Australia are essential. Family services department workers must be well trained in cross-cultural issues and the various methods of child rearing accepted among relevant communities.
Recommendation 186 National education and awareness campaigns about child abuse and neglect should be developed and directed towards the major ethnic and cultural communities around Australia.
Implementation.The Department of Health and Family Services and DIMA should conduct these campaigns in consultation with OFC.
Recommendation 187 The national care and protection standards should require that all family services department workers making assessments or conducting investigations receive appropriate training in cross-cultural awareness, including issues relating to differing child rearing practices in various communities.
Children with disabilities
17.97 About one quarter of the children in care are admitted to care partly or mainly as a result of a disability. DRP 3 suggested a national education and awareness campaign to assist in the prevention of abuse and neglect of children with disabilities. In its submission, the Department of Health and Family Services pointed out that previous attempts to develop a national education and awareness campaign for child abuse prevention ‘…failed to gain the support of all Australian Governments’. In the light of those difficulties, the submission suggested that ‘…this recommendation is unlikely to meet with support’. Although there may be difficulties in securing the co-operation of all jurisdictions, the need to develop a national education and awareness campaign remains apparent.
17.98 The Inquiry heard criticism about the handling of abuse allegations concerning children with disabilities. The problems faced by children in care are generally exacerbated for children with disabilities because they may have greater difficulties communicating and participating in decisions that affect them. Their disabilities may make them particularly vulnerable to further abuse or to systems abuse and compound their difficulties in obtaining proper support or services.
17.99 In 1995 the Department of Health and Family Services released a Proposed Plan of Action for the Prevention of Abuse and Neglect of Children with Disabilities. While this is commendable, standards are required to ensure that, once children with disabilities enter care, they are appropriately consulted and their needs and perspectives taken into consideration in providing services and support.
Recommendation 188 National education and awareness campaigns should be conducted around Australia about particular issues concerning abuse and neglect of children with disabilities.
Implementation. The Department of Health and Family Services should conduct these campaigns in consultation with OFC and the relevant State and Territory agencies.
Recommendation 189 The national care and protection standards should require that all family services department workers receive appropriate training in issues relating to abuse and neglect of children with disabilities.
Adolescents, family disputes and the care system
17.100 Care and protection legislation in some jurisdictions prohibit courts making certain orders with respect to young people aged 16 or 17, even where there may be evidence of abuse or neglect. In addition, family services departments often do not act to protect young people who have almost, but not quite, attained an age which would preclude involvement by the department (for example, where the young person is 16 years old in a jurisdiction that defines a child as a person under 17). Family services departments should be able to respond to the needs of all children and young people who require care and protection.
17.101 Young people may become homeless or be at risk of homelessness due to abuse or neglect by their families or because of family breakdown. These young people could fall under the jurisdiction of a variety of government agencies including those that provide care and protection, income support and emergency accommodation. In recognition of this, the relevant agencies generally follow the Commonwealth/State Youth Protocol for the case management of homeless children. Current operation of and problems with the Protocol are discussed at paragraphs 9.54-60.
17.102 The Youth Homelessness Pilot Program is another Commonwealth/State project aimed at young people who fall under more than one agency. The Youth Homeless Taskforce, discussed at paras 6.6 and 9.50, oversees the program.
17.103 The national care and protection standards should include a requirement that continuing funding and resources should be made available in each jurisdiction to ensure that adequate family therapy and mediation programs are available to all young people and their families. The national standards on this issue should draw upon the insights and conclusions of the Youth Homelessness Pilot Program Evaluation. In particular, consideration should be given to other early intervention strategies.
17.104 Family breakdown may also be addressed in children’s courts in some jurisdictions. Parents and/or children can apply to the courts, on the grounds of irretrievable breakdown or irreconcilable differences, for orders for provision of services or placement of a young person away from the family. In some cases, the legislation requires a mediation or conciliation conference between the young person and his or her family before the court may hear an application on these grounds. Many of the concerns surrounding the conduct of these conferences are similar to those involved in family group conferences or pre-hearing conferences in care and protection proceedings.
Recommendation 190 The national care and protection standards should include the following requirements.
A child for the purposes of care and protection jurisdictions should be defined as a person under the age of 18 and a court should be able to make orders for a young person aged 16 to 18 if it finds, after taking into consideration the wishes of the young person, that the young person is in need of care and protection.
All family services department workers should receive appropriate training in issues relating to abuse and neglect of adolescents, as well as reasons for family/adolescent breakdown.
Adolescent and family therapy and mediation programs should be available to all young people in dispute with their families.
Adolescent and family therapy and mediation programs should develop models of best practice to meet the needs of adolescents and their families, particularly in Aboriginal and Torres Strait Islander, non-English speaking background, isolated and/or rural communities.
Recommendation 191 Research should be conducted into the appropriate mechanisms and forums for dealing with adolescent/family breakdown, including the involvement of family services departments, conferencing models and court processes. This research should
focus on the reasons for such breakdowns and the appropriateness of the care and protection system in alleviating the problems
monitor the appropriateness of the national care and protection standards for adolescents with family disputes.
Implementation. OFC should co-ordinate this research following the release of the report on the Youth Homelessness Pilot Program.
 s 51(xxvi).
 See paras 2.63-64, 2,68, 4.59.
 Secretariat of National Aboriginal & Islander Child Care Melbourne 1995, 4.
 AIFS Melbourne 1994, 47.
 Bringing Them Home HREOC Sydney 1997.
 eg Children (Care and Protection) Act 1987 (NSW) s 87; Community Welfare Act 1983 (NT) s 69.
 See para 14.34 for a discussion of these teams in Qld.
 B Butler ‘Aboriginal child protection’ in G Calvert, A Ford & P Parkinson (eds) The Practice of Child Protection: Australian Approaches Hale & Iremonger Sydney 1992, 18.
 NSW Dept of Community Services Draft Paper: Strategic Directions in Child Protection NSW Dept of Community Services Sydney 1995, 15.
 eg Aboriginal Legal Service of WA IP Submission 75; Action for Children IP Submission 189.
 Aboriginal Legal Service of WA IP Submission 75.
 Secretariat of the National Aboriginal & Torres Strait Islander Child Care IP Submission 56; Federation of Community Legal Centres (Vic) IP Submission 129. Differences include the involvement in child rearing of extended family members and the lack of emphasis on ‘…material comfort, discipline and training for their children; rather the emphasis is on values such as the expression of warmth, affection and acceptance’: ALRC Report 31 The Recognition of Aboriginal Customary Laws AGPS Canberra 1986, 171. See also paras 9.38-39.
 Bringing Them Home HREOC Sydney 1997.
 P Boss et al (eds) Profile of Young Australians Churchill Livingstone Melbourne 995, 47.
 Dept of Health and Family Services DRP Submission 75.
 B Szwarc Changing Particular Care: A National Survey of Children in Non-Government Substitute Care in Australia National Children’s Bureau of Australia Notting Hill 1992, 36.
 Draft rec 9.23.
 Dept of Health and Family Services DRP Submission 75.
 eg Disability Services Office IP Submission 205.
 See para 4.65.
 Dept of Health and Family Services DRP Submission 75.
 eg Children (Care and Protection) Act 1987 (NSW) s 73(1)(a) (orders may only be made if the child is under 16); Children and Young Person’s Act 1989 (Vic) s 3 (a child is person under 17 years of age or under 18 if there is a continuing care and protection order); Child Welfare Act 1960 (Tas) s 3 (a child is person under 17 years of age).
 See HREOC Our Homeless Children: Report of the National Inquiry into Homeless Children AGPS Canberra 1989, 85.
 eg Children and Young Persons Act 1989 (Vic) s 71 (either a child or the person having custody of a child may apply to court on grounds of irreconcilable differences); Children (Care and Protection) Act 1987 (NSW) s 57(1) (the person having custody of a child may apply to court on grounds of irretrievable breakdown); Child Welfare Act 1960 (Tas) s 33 (a parent may bring a child before court on allegations that the child is uncontrollable).
 See paras 17.48-54.