Report Cards

• Article 2: All children have a right to non-discrimination
• Article 3: In all actions concerning children, the best interests of the child shall be a primary consideration
• Article 4: All the rights under the Convention should be implemented through legislation, administrative and other measures
• Article 16: All children have a right to privacy and shall not be subject to arbitrary interference directed at their family
• Article 24: All children have a right to access health care services
• Article 26: Every child has a right to benefit from social security
• Article 27: Every child has a right to an adequate standard of living
• Article 28: Every child has a right to education

Positive Developments

NATIONAL: Federal legislation enacted to protect against discrimination on the basis of sexual orientation

On 1 August 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (SDA Amendment Act) came into effect. [1] Section 12 of the SDA Amendment Act, which interprets ‘sexual orientation’ as meaning:

(a) persons of the same sex; or
(b) persons of a different sex; or
(c) persons of the same sex and persons of a different sex [2]

inserts a new ground of protection into the Sex Discrimination Act 1984 (Cth). The inclusion of this new protection expands the previous federal protection which could only be afforded on the basis of ‘sexual preference’ in an employment or occupation context. [3] Whilst the SDA Amendment Act does not use labels, it is intended to cover gay, lesbian, homosexual, bisexual, straight, and heterosexual orientations. [4] This new amendment enables the Australian Human Rights Commission to receive complaints of discrimination on the ground of sexual orientation. Information on how to make a complaint can be found here.

NSW: Release of OCHRE: Opportunity, Choice, Healing, Responsibility, Empowerment

On 8 April 2013, the New South Wales Government released their Government Plan for Aboriginal Affairs targeting education, employment and accountability. The plan was developed collaboratively through the Ministerial Taskforce on Aboriginal Affairs following 27 forums which heard from more than 3000 people. [5] As part of the plan, the state government will roll out four initiatives in selected communities initially, and following evaluation, will be rolled out more widely. The initiatives, ‘Opportunity Hubs’, ‘Aboriginal Language and Culture Nests’, ‘Local Decision Making’ and, ‘Connected Communities’, will focus on supporting Aboriginal students to stay at school and find sustainable jobs, provide continuous learning for Aboriginal language learners and ensure Aboriginal communities have a greater role in decision-making of what services are run in their community and how they are run. As at December 2013, three local partnerships had been implemented in the Local Decision Making model, with more to be established in 2014. [6] An Independent Aboriginal Council will also be established to monitor and report on the progress of the plan in line with the accountability framework that underlies the entire plan. [7] Most recently, a new Deputy Ombudsman was announced at the end of 2013, with legislation to be introduced in 2014 to allow for the appointment. [8]

VIC: Release of the Victorian Aboriginal Affairs Framework 2013-2018

On 22 November 2012, the Victorian Government released the Victorian Aboriginal Affairs Framework 2013-2018, of which one of the key priorities is “ensuring access to services that meet the needs of Aboriginal people across the State”. [9] As part of the framework, all departments will be required to develop an Aboriginal Inclusion Action Plan that will demonstrate how access and inclusion will be improved for Aboriginal people using their services, with a ten-year framework to be finalised in 2013-14 that will evaluate and review effectiveness. [10] In improving accessibility, the framework has created criteria such as making clients aware of the services available in addition to which of those they are eligible for and ensuring that they can use the service affordably as well as getting to it easily. [11] Most importantly, the framework requires effective engagement with Aboriginal culture [12] and includes a greater focus on Aboriginal children and young people. [13] An annual report card, titled the Victorian Government Aboriginal Affairs Report, will be released early each year. [14]

VIC: Release of the Human Services Aboriginal Strategic Framework 2013-2015

On 7 June 2013, the Human Services Aboriginal Strategic Framework 2013-2015 was launched, with the aims of addressing barriers faced by Aboriginal peoples in accessing human services and strengthening the systems of mainstream services, Aboriginal organisations and of the Department of Human Services. [15] Progress will be reported at each of the Human Services Aboriginal Roundtable (up to four a year), with an annual report consolidating each of the incremental reports. [16] The reports will include anecdotal feedback and data as well as identifying good practice and emerging issues. [17] This Human Services Framework contributes to the aims of the Victorian Aboriginal Affairs Framework 2013-2018, which include the long term goals of reducing the Aboriginal and non-Aboriginal gap of child protection substantiations by 75% by 2023, and completely eliminating the gap in Aboriginal and non-Aboriginal juveniles under youth justice. [18]

VIC: Appointment of Commissioner for Aboriginal Children and Young People

On 15 July 2013, Andrew Jackomos was appointed as Victoria’s first Commissioner for Aboriginal Children and Young People. The appointment is the first in Australia and recognises the vulnerabilities of Aboriginal children. The Commissioner will be working towards achieving better outcomes, particularly in the context of over-representation in the child-protection and youth justice systems. [19] The Commissioner will also be collaborating with the Principal Commissioner of the Commission for Children and Young People (which is independent to Government) to oversee the five year plan for Aboriginal children in out-of-home-care, as well as providing advice to government and service providers. [20] The appointment has been approved by the National Children’s Commissioner as a step in the right direction. [21]

Areas Lacking Progress

NATIONAL: Lack of an Aboriginal and Torres Strait Islander Steering Group

Australia is yet to establish and resource an Aboriginal and Torres Strait Islander Steering Group to inform the ‘Closing the Gap’ targets in the context of child development, well-being and protection.

Whilst there is a voluntary organisation called the Close the Gap Campaign Steering Committee, this group receives no funding from the government and only reports on closing the health gap. [22] A steering committee funded by the government to inform the ‘Closing the Gap’ targets in all areas of disadvantage is still needed.

Negative Developments

NATIONAL: Discriminatory measures of the Stronger Futures in the Northern Territory Act 2012 (Cth), in particular the ‘School Enrolment and Attendance Measure’

Although under the Stronger Futures in the Northern Territory Act 2012 (Cth) (Stronger Futures Act), which came into effect on 16 July 2012, the Racial Discrimination Act 1975 (Cth) (RDA) is not suspended like it was under the Northern Territory National Emergency Response Act 2007 (Cth), [23] the new legislation has still been criticised as discriminatory. The Stronger Futures Act and its associated package has come under fire from strong criticism, with a petition of 43,000 signatures submitted on 17 June 2012 to persuade the government to withdraw the legislation. [24] Ms. Navi Pillay, the United National High Commissioner for Human Rights, expressed her concern at the “punitive nature” [25] of the education measures as well as her fear that some of the measures had a “disproportionate and discriminatory impact on Indigenous communities”. [26] The Australian Human Rights Commission has also voiced similar concerns that although the RDA has now been reinstated, some of the measures are still discriminatory and have a negative impact on Indigenous rights. [27]

One of the education measures referred to by Ms Pillay was the ‘School Enrolment and Attendance Measure’ (SEAM) which permits welfare payments to be withdrawn from parents if their children truant from school more than five times over two terms. [28] Whilst the Federal Government cites the necessity of the program for, “improv[ing] school enrolment and attendance in areas where school attendance and enrolment is very low”, [29] the Australian Human Rights Commission (AHRC) has expressed concern that the suspension of welfare payments may result in households not being able to access food, clothing, housing and medical care, which would ultimately, “have a severe impact on the well-being of children.” [30] Similarly, the National Congress of Australia’s First Peoples (the Congress) expressed their concern at the “punitive” [31] and “excessive” [32] penalties under SEAM, reasoning that income suspension:

• would result in placing extra burden on children in regards to their families’ income support receipt;
• could possibly subject them to victimisation from the rest of their family if their income payments were suspended; [33] and
• could potentially affect their right to an adequate standard of living. [34]

The Joint Parliamentary Committee on Human Rights (the Committee) reviewed the Stronger Futures Act and found that although the legislative criteria of SEAM are neutral and not explicitly race-based, they appear to overwhelmingly apply to Aboriginal communities [35] without clear evidence that SEAM has been able to significantly reduce low school attendance. [36] On this ground, the Committee concluded that due to SEAM’s predominant effect on Indigenous communities, the program could fall within the definition of racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination. [37] The report also pointed out that SEAM could potentially limit the right to social security, which is required by the United Nations Committee on Economic, Social and Cultural Rights to be available, adequate and accessible. [38] The United Nations Special Rapporteurs on Extreme Poverty and Human Rights and Rights of Indigenous Peoples also clarified that qualifying conditions of benefits must be reasonable, proportionate and transparent. [39] However, the Committee’s report has reviewed SEAM to be limiting of this right, as the suspension of payments also affects family members who have nothing to do with the failure to attend school. [40] The Committee has also concluded SEAM to be impeding on the right to privacy [41] and has recommended that the Stronger Futures package be subject to another review from the Committee in twelve months. [42] The Congress also made similar remarks on the first anniversary of the laws coming into effect, calling for the independent checks and reviewing the effectiveness of the measures, as well as pushing for a re-establishment of a sufficiently funded complaints mechanism within the Commonwealth Ombudsman’s office for Stronger Futures. [43]

NATIONAL: Criticism of the Stronger Futures in the Northern Territory Package consultation process

Despite priding itself on, “respond[ing] directly to what Aboriginal people told the Government was important to them,” [44] the ten-year Stronger Futures in the Northern Territory Package (Stronger Futures) has been criticised by multiple agencies for its ineffective consultation process. Following the release of the Federal Government’s Stronger Futures in the Northern Territory Bill in 2011, both the AHRC and the Secretariat of National Aboriginal and Islander Child Care’s (SNAICC) made submissions in early February 2012 recommending that there should be greater consultation and engagement with Aboriginal communities [45] as well as criticising that the approach lacked in real participation. [46] A month later, Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, made similar comments in his opening speech to the Senate Community Affairs Legislation Committee inquiry, describing the consultation process as “very weak.” [47] At a similar time, the then Indigenous Affairs Minister, Jenny Macklin, received a letter from the United Nations High Commissioner for Human Rights, which expressed her concern at the insufficient “participation of Indigenous communities in the review and devising of new legislation” [48] and explained that “without the genuine participation and support of Indigenous communities…the measures contained in the legislation may not achieve their full potential to improve the lives of Indigenous people in Australia.” [49] At the launch of the Listening but not Hearing report by the University of Technology’s Jumbunna Indigenous House of Learning, Australia’s former prime minister, Malcolm Fraser, voiced similar criticisms, saying that, “consultations should allow the affected Indigenous people to genuinely influence the decision-making processes rather than be a tokenistic mechanism for providing affected people with information about decisions already made.” [50]

NATIONAL: The future of the National Congress of Australia’s First Peoples to be reviewed

The National Congress of Australia’s First Peoples (the Congress) was established in April 2010 as to act as national representative body for Aboriginal and Torres Strait Islander peoples. The Congress which had been receiving funding from the Federal Government since its establishment was due to receive another $15 million over three years from July 2014 under the previous government. With the change of government in September 2013, prior plans will most likely not be honoured. The current Indigenous Affairs Minister, Nigel Scullion, announced on 19 December 2013 that he had spoken to the Congress’ two co-chairs to “make plans for the future” [51] as well as advised them to “build membership from its current level of approximately 7500 and look to other sources of financial support in the future.” [52] The Congress has promised that it will continue. The Government will release their final budget for the 2013-14 year in 2014.

NATIONAL: Funding stripped from Australia’s peak Aboriginal legal aid organisation

The Abbott government plans to defund of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), the national peak body for Aboriginal and Torres Strait Islander Legal Services (ATSILS) and of all Law Reform and Policy Officer positions within each State and Territory based ATSILS. [53] Aboriginal and Torres Strait Islander Legal Services say it will further entrench Indigenous people as second-class citizens. [54]

NATSILS Chairperson, Shane Duffy, commented:

Rather than funding cuts, we need more investment in prevention and early intervention services to Aboriginal and Torres Strait Islander peoples, especially in regards to civil and family law. Cutting funding to Aboriginal and Torres Strait Islander Legal Services goes against all the evidence of what is needed to close the gap in access to justice for Aboriginal and Torres Strait Islander peoples. [55]

• Consider establishing and resourcing an Aboriginal and Torres Strait Islander steering Group to inform the ‘Closing the Gap’ targets of child developments, well-being and protection.
• The Federal Government continue funding for the National Congress of Australia’s First Peoples even if the amount is altered to accommodate other election promises.
• Ensure that the Federal Government continues reviewing and consulting with Aboriginal communities affected by the Stronger Futures package.
• The Federal Government consider alternative measures to address improving poor school enrolment and attendance rates.

1. Australian Human Rights Commission, ‘New protection against discrimination on the basis of sexual orientation, gender identity and intersex status’ (1 August 2013) http://www.humanrights.gov.au/new-protection , (accessed 19 December 2013)
2. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth), s12.
3. Australian Human Rights Commission, ‘Sexual orientation, gender identity & intersex status discrimination’ (Information sheet, 1 August 2013) 1 https://www.humanrights.gov.au/sites/default/files/Information%20sheet%20on%20new%20protections%20in%20the%20Sex%20Discrimination%20Act%20-%20FINAL.pdf , (accessed 19 December 2013).
4. Ibid, 3.
5. Office of Communities (Aboriginal Affairs), NSW Government, ‘NSW Government’s Aboriginal Affairs Plan’ (8 April 2013, media release) < http://www.aboriginalaffairs.nsw.gov.au/nsw-governments-aboriginal-affairs-plan/>  (accessed 7 January 2014).
6. OCHRE, ‘Local Decision Making’ (December 2013, Fact sheet) http://aboriginalaffairs.nsw.gov.au/wp-content/uploads/2013/07/LDM-Fact-Sheet1.pdf  (accessed 7 January 2014).
7. OCHRE, ‘Local Decision Making’ (December 2013, Fact sheet) http://aboriginalaffairs.nsw.gov.au/wp-content/uploads/2013/07/LDM-Fact-Sheet1.pdf  (accessed 7 January 2014).
8. http://www.aboriginalaffairs.nsw.gov.au/new-aboriginal-deputy-ombudsman-the-key-to-accountability/, (accessed 7 January 2014)
9. Department of Premier and Cabinet, Victorian Government, ‘Victorian Aboriginal Affairs Framework’ (website, 4 October 2013) http://www.dpc.vic.gov.au/index.php/aboriginal-affairs/aboriginal-affairs-policy/victorian-aboriginal-affairs-framework  (accessed 2 January 2014)
10. Department of Premier and Cabinet, Victorian Government, Victorian Aboriginal Affairs Framework 2013-2018, 17 < http://www.dpc.vic.gov.au/images/documents/Aboriginal_Affairs/Victorian-Aboriginal-Affairs-Framework-2013-2018.pdf>  accessed (6 January 2014)
11. Department of Premier and Cabinet, Victorian Government, Victorian Aboriginal Affairs Framework 2013-2018, 18 < http://www.dpc.vic.gov.au/images/documents/Aboriginal_Affairs/Victorian-Aboriginal-Affairs-Framework-2013-2018.pdf> ( accessed 6 January 2014)
12. Department of Premier and Cabinet, Victorian Government, Victorian Aboriginal Affairs Framework 2013-2018, 5 < http://www.dpc.vic.gov.au/images/documents/Aboriginal_Affairs/Victorian-Aboriginal-Affairs-Framework-2013-2018.pdf>  (accessed 6 January 2014)
13. Secretariat of National Aboriginal and Islander Children Care, ‘SNAICC News: Victorian Government releases new blueprint for Aboriginal Affairs’ (5 December 2012, website) < http://www.snaicc.org.au/news-events/fx-view-article.cfm?loadref=32&id=938>  (accessed 6 January 2014)
14. Department of Premier and Cabinet, Victorian Government, Victorian Aboriginal Affairs Framework 2013-2018, 2 < http://www.dpc.vic.gov.au/images/documents/Aboriginal_Affairs/Victorian-Aboriginal-Affairs-Framework-2013-2018.pdf>(accessed 6 January 2014)
15. Department of Human Services, Victorian Government, ‘Human Services Aboriginal Strategic Framework 2013-15 launched’ (12 June 2013, media release) < http://www.dhs.vic.gov.au/about-the-department/news-and-events/news/general-news/human-services-aboriginal-strategic-framework-20132015-launched>  accessed 6 January 2014)
16. Department of Human Services, Victorian Government, Human Services Aboriginal Strategic Framework 2013-15, 6 http://www.dhs.vic.gov.au/__data/assets/pdf_file/0009/768897/Aboriginal_Services_Framework.pdf  (accessed 6 January 2014)
17. Department of Human Services, Victorian Government, Human Services Aboriginal Strategic Framework 2013-15, 6 < http://www.dhs.vic.gov.au/__data/assets/pdf_file/0009/768897/Aboriginal_Services_Framework.pdf>
    (accessed 6 January 2014)
18. Department of Human Services, Victorian Government, Human Services Aboriginal Strategic Framework 2013-15, 8 < http://www.dhs.vic.gov.au/__data/assets/pdf_file/0009/768897/Aboriginal_Services_Framework.pdf>  (accessed 6 January 2014)
19. Premier of Victoria, Victorian Government, ‘Victoria appoints nation’s first Commissioner for Aboriginal Children and Young People’ (15 July 2013, media release) < http://www.premier.vic.gov.au/media-centre/media-releases/7336-victoria-appoints-nation-s-first-commissioner-for-aboriginal-children-and-young-people.html>  (accessed 6 January 2014).
20. Premier of Victoria, Victorian Government, ‘Victoria appoints nation’s first Commissioner for Aboriginal Children and Young People’ (15 July 2013, media release) < http://www.premier.vic.gov.au/media-centre/media-releases/7336-victoria-appoints-nation-s-first-commissioner-for-aboriginal-children-and-young-people.html>  (accessed 6 January 2014)
21. Australian Human Rights Commission, ‘Victorian appointment for Aboriginal children and young people’ (16 July 2013) < https://www.humanrights.gov.au/news/media-releases/victorian-appointment-aboriginal-children-and-young-people>  (accessed 6 January 2014)
22. Australian Human Rights Commission, ‘Close the Gap: Indigenous Health Campaign’ http://www.humanrights.gov.au/close-gap-indigenous-health-campaign (accessed on 16 January 2014)
23. Jumbunna Indigenous House of Learning, University of Technology, Sydney, ‘Listening but not Hearing: A response to the NTER Stronger Futures Consultations June to August 2011’ (March 2012) 5 http://www.jumbunna.uts.edu.au/researchareas/ListeningButNotHearing8March2012.pdf  (accessed 19 December 2013).
24. Secretariat of National Aboriginal and Islander Child Care, ‘Timeline – Stronger Futures legislation’ http://www.snaicc.org.au/policy-advocacy/dsp-default-e.cfm?loadref=225  (accessed 19 December 2013)
25. Lisa Martin, ‘Australian intervention concerns UN’, The Australian (2 August 2012) http://www.theaustralian.com.au/news/latest-news/australian-intervention-concerns-un/story-fn3dxiwe-1226440327258  (accessed 19 December 2013)
26. Secretariat of National Aboriginal and Islander Child Care, ‘Timeline – Stronger Futures legislation’ http://www.snaicc.org.au/policy-advocacy/dsp-default-e.cfm?loadref=225  (accessed 19 December 2013)
27. Chiara Pazzano, ‘Factbox: The ‘Stronger Futures’ legislation’ (SBS, 26 August 2013) http://www.sbs.com.au/news/article/2012/06/20/factbox-stronger-futures-legislation  (accessed 2 January 2014)
28. Chiara Pazzano, ‘Factbox: The ‘Stronger Futures’ legislation’ (SBS, 26 August 2013) http://www.sbs.com.au/news/article/2012/06/20/factbox-stronger-futures-legislation  (accessed 2 January 2014)
29. Assessment of Policy Objectives with Human Rights: Social Security Legislation Amendment Bill 2011, 2.
30. http://www.sbs.com.au/news/article/2012/06/20/factbox-stronger-futures-legislation
31. Joint Parliamentary Committee on Human Rights (Commonwealth Government), ‘Examination of legislation in accordance with Human Rights (Parliamentary Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and related legislation’ (June 2013) p. 71 < http://nationalcongress.com.au/wp-content/uploads/2013/07/HumanRightsCommitteeStrongerFuturesReport.pdf> (accessed 6 January 2014)
32. Ibid
33. Ibid
34. Ibid, p. 66
35. Ibid
36. Ibid, p. 74
37. Ibid
38. Ibid, p.19
39. Ibid
40. Ibid, p.66
41. Ibid, p.65
42. Ibid, p. 76
43. National Congress of Australia’s First Peoples, ‘Congress statement: Stronger Futures anniversary’ (16 July 2013) <http://nationalcongress.com.au/congress-statement-stronger-futures-anniversary/> (accessed 6 January 2014)
44. Australian Government, Department of Social Services, ‘Stronger Futures in the Northern Territory’ (20 December 2013) http://www.dss.gov.au/our-responsibilities/indigenous-australians/programs-services/stronger-futures-in-the-northern-territory-0  ( accessed 2 January 2014)
45. Secretariat of National Aboriginal and Islander Child Care, ‘Timeline – Stronger Futures legislation’ http://www.snaicc.org.au/policy-advocacy/dsp-default-e.cfm?loadref=225  (accessed 19 December 2013)
46. Ibid.
47. Australian Human Rights Commission, ‘Opening statement to Senate Community Affairs Legislation Committee inquiry into the NTER (Stronger Futures) Bills 2012’ (1 March 2012) http://www.humanrights.gov.au/opening-statement-senate-community-affairs-legislation-committee-inquiry-nter-stronger-futures-bills  (accessed 2 January 2014)
48. Stand for Freedom, ‘Letter to Macklin reveals criticism by UN human rights chief’ <http://standforfreedom.org.au/2012/08/02/un-says-stronger-futures-wont-benefit-indigenous-people/>  (accessed 19 December 2013)
49. Ibid.
50. Lisa Martin, ‘Scrap NT intervention laws: Malcolm Fraser’ (The Sydney Morning Herald, 8 March 2012) http://news.smh.com.au/breaking-news-national/scrap-nt-intervention-laws-malcolm-fraser-20120308-1un2b.html , (accessed 19 December 2013)
51. Dan Harrison, ‘Indigenous organisation to defy Tony Abbott funding cut’ (19 December 2013, The Sydney Morning Herald) http://www.smh.com.au/federal-politics/political-news/indigenous-organisation-to-defy-tony-abbott-funding-cut-20131219-2znr4.html  (accessed 6 January 2014)
52. Dan Harrison, ‘Indigenous organisation to defy Tony Abbott funding cut’ (19 December 2013, The Sydney Morning Herald) http://www.smh.com.au/federal-politics/political-news/indigenous-organisation-to-defy-tony-abbott-funding-cut-20131219-2znr4.html  (accessed 6 January 2014)
53. NATSILS, Media Release, 17 December 2014, ‘Government to defund Aboriginal Legal Services Peak Body and all Law Reform and Policy Positions’http://www.natsils.org.au/portals/natsils/Media%20Releases/17-12-13%20NATSILS%20MR%20Govt%20to%20defund%20NATSILS%20and%20all%20ATSILS%20Law%20Reform%20and%20Policy%20Positions.pdf
54. Ibid
55. Ibid