Report Cards

• Article 7: Children have the right to a legally registered name and nationality. Children also have the right to know their parents and, as far as possible, to be cared for by them.
• Article 8: Governments should respect a child’s right to a name, a nationality and family ties.
• Article 20: Children who cannot be looked after by their own family must be looked after properly by people who respect their religion, culture and language.

Areas lacking progress

NATIONAL: Failure to implement recommendations of the Bringing Them Home Report or international obligations relating to Indigenous children to prevent separation from cultural and linguistic identity

The Child Rights Taskforce in its Listen to the Children Report urged the Australian government to implement the recommendations of the Bringing Them Home Report, including recognition of the rights of Aboriginal children to their identity, name, culture, language and family relationships. [1]

The Bringing Them Home Report recommended a number of changes to national law and policy in order to redress the inequalities faced by Indigenous Australians. This included the movement of responsibility for Indigenous child protection to shift to Aboriginal controlled agencies, a national compensation scheme for victims of the stolen generation, a major transfer of other resources to Indigenous communities, as well as a social justice investment package in order to alleviate intergenerational poverty. However, these and other recommendations have been largely ignored to date. [2] Aboriginal leaders such as Reconciliation Queensland Co-Chair Heather Castledine assert that only a handful of recommendations of the 54 point Bringing Them Home Report have been implemented at present, and that there is “a long way to go” before Indigenous equality can be achieved. [3] Former Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma has stated that, “the gross violations of human rights that were visited on generations of Aboriginal children still (by and large) need redress and reparation.” [4]

The establishment of the Stolen Generations Working Partnership (“SGWP”) in 2010 between leading Stolen Generation organisations and government bodies has seen renewed action in this area and establishment of annual national priorities. This year, the National Sorry Day Committee, one of the key members of the SGWP, indicated that while it was satisfied with the progress of the 2012 national priorities, there remains a number of issues which must be addressed in order to affect change, including the reluctance of Indigenous persons to access mainstream services, as well as the fact that recommendations of the Bringing Them Home Report, compiled over 15 years ago, remain outstanding. [5]

Indeed, Lowitija O’Donoghue, former Australian of the Year, deplores the fact that “[o]f the 54 recommendations made in the Bringing Them Home report, 35 have been ignored – that is two thirds. Where there has been a response…the funding is drastically inadequate to meet the need.” [6]

Several organisations exist in Australia which focus primarily on advocating for the adoption of the Bringing Them Home recommendations as well as those of the UN Human Rights Committee and the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, including the Bringing Them Home Committee (WA) Inc. [7] and Reconciliation Australia. [8]

The failure of the government to wholly implement the recommendations of the Bringing Them Home Report has contributed to the continued inequalities faced by many Indigenous people and children today. As a result of continued disadvantage and in some cases, intergenerational poverty, the numbers of Aboriginal and Torres Strait Islander children being placed in out-of-home care each year is increasing. The system is not able to cope with such numbers and many children are being placed into care where their cultural and linguistic identity is not shared.

As at 30 June 2012, 13,299 Aboriginal and Torres Strait Islander children were living in out-of-home care, at a rate of 55.1 per 1000 children nationally. [9] This rate for Indigenous children being placed in out-of-home care is currently 10 times higher than that of non-Indigenous children. [10] While the Indigenous Child Placement Principle has been implemented in all states, due to the shortage of Indigenous carers and other factors, 31% of Aboriginal and Torres Strait Islander children who were subjected to out-of-home care orders were not placed with Indigenous relatives or caregivers. [11] As stated by the CRC, in a situation where Indigenous children are removed from their homes at an alarmingly high rate, and not placed with indigenous carers, such placements may not adequately facilitate the preservation of the child’s cultural and linguistic identity.

Advocacy group SNAICC has stated that it is a, “lack of early intervention measures and support for at-risk Aboriginal and Torres Strait Islander families” which has led to high removal rates of Aboriginal children from families and their placement with non-Indigenous carers.” [12] At the SNAICC forum on out-of-home care in June 2013, former vice president of the United Nations Committee on the Rights of the Child, Ms Mauras Perez, said that solutions for Indigenous children lay in greater focus on early childhood development needs and greater support for parents. Ms Perez also argued that programs and services need to be culturally sensitive and under the control of Indigenous families and organisations, [13] if they are to effectively address the issues facing many young indigenous children in out-of-home care.

The government must seek to act upon the recommendations of the CRC and Aboriginal leaders such as Lowitija O’Donoghue, who urges, “those of you with the capacity to act, to act now and to begin by implementing the rest of the Bringing Them Home recommendations.” [14] It is vital that the recommendations of the Bringing Them Home Report be implemented and that both the rates and appropriateness of placement of Indigenous children in out-of-home care be reviewed. The results of the review must be acted upon expeditiously in order to safeguard children’s rights to their cultural and linguistic identity, as well as their rights to family relationships in particular.

NATIONAL: Lack of protection for children’s right to citizenship

Under section 36 of the Australian Citizenship Act 2007 (Cth), the relevant Minister has the power to revoke the citizenship of children whose responsible parents cease to be Australian citizens under the Act.

This provision remains in force in Australia, despite the express recommendation of the CRC to remove such a clause from law and ensure no child is deprived of their citizenship or identity on the grounds of the actions of their parent/s. [15]

The Australian Human Rights Commission has also made submissions against the provisions, finding that the discretion of the Minister to remove the citizenship of children in such circumstances would contravene article 8 of the Convention on the Rights of the Child (1989). [16] In addition, the NSW Council for Civil Liberties has argued that the current Act does not comply with international obligations and that as a matter of good policy, in a case in which a parent’s citizenship has been revoked, “the ‘sins of the parent’ should not be visited on her or his children.” [17]

Clearly, the current legislation relating to discretional revocation of a child’s Australian citizenship on the basis of their parents revocation is contrary to Australia’s international obligations and the recommendations of the CRC. This legislation must be amended expeditiously in order to ensure no child is deprived of their identity or citizenship as a result of the status of their parent/s.

• Review of the progress of the Bringing Them Home Report and implementation of recommendations by UN Committees and Rapporteurs to ensure full respect for the rights of Aboriginal and Torres Strait Islander children to their identity, name, culture, language and family relationships, particularly when removed from the care of their family.
• Take measures to ensure that no child can be deprived of their Australian citizenship on any ground, regardless of the status of their parents.

1. Child Rights Taskforce, Listen to the Children Report (2012) p. 9
2. Padraic Gibson, ‘We have to stop the creation of another stolen generation’ (12 June 2013) The Guardian (online) http://www.theguardian.com/commentisfree/2013/jun/12/stolen-generation-aboriginal-children (accessed 5 November 2013)
3. David Jackmanson, ‘Most “Bringing them home” recommendations ignored – indigenous leader’, Newsbytes, 27 May 2010 (online) http://newsbytes.com.au/2010/05/most-bringing-them-home-recommendations-ignored-indigenous-leader/ (accessed 5 November 2013)
4. Tom Calma, ‘Ten Years later: Bringing them home and the forced removal of children’, speech presented to the Indigenous Law Centre and (then) HRECOC Conference, Sydney, 28 September 2007
5. National Sorry Day Committee Inc., Stolen Generations Working Partnership: Scorecard 2012 (2012) pp.16-17
6. Lowitija O’Donoghue, ‘On the 10^th Anniversary of Bringing Them Home’, speech delivered in the Great Hall of Parliament, Canberra, 24 May 2007, online at http://australiansall.com.au/archive/post/on-the-10th-anniversary-of-bringing-them-home/ (accessed 5 November 2013)
7. Bringing Them Home Committee (WA) Inc. ‘Aims and Objectives’ (online ) at http://bringingthemhomewa.com/aims-objectives/(accessed 5 November 2013)
8. Reconciliation Australia, Recognising Aboriginal and Torres Strait Islander Rights (2000) ch 1 (online) http://www.austlii.edu.au/au/other/IndigLRes/car/2000/9/pg4.htm (accessed 5 November 2013)
9. Australian Institute of Health and Welfare, Child Protection in Australia 2011-2012, p.41 (online) https://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129542752 (accessed 11 November 2013)
10. Australian Institute of Health and Welfare, Child Protection in Australia 2011-2012, p.41 (online) https://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129542752 (accessed 11 November 2013)
11. Australian Institute of Health and Welfare, Child Protection in Australia 2011-2012, p.42, see also Figure 4.4., (online) https://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129542752 (accessed 11 November 2013)
12. SNAICC, ‘Stop the Creation of Another Stolen Generation! – Melbourne forum on children in out-of-home care’ (Media Release, 25 June 2013) (online)  http://www.snaicc.org.au/news-events/fx-view-article.cfm?loadref=32&id=1106 (accessed 5 November 2013)
13. SNAICC, ‘Stop the Creation of Another Stolen Generation! – Melbourne forum on children in out-of-home care’ (Media Release, 25 June 2013) (online)  http://www.snaicc.org.au/news-events/fx-view-article.cfm?loadref=32&id=1106 (accessed 5 November 2013)
14. Lowitija O’Donoghue, ‘On the 10^th Anniversary of Bringing Them Home’, speech delivered in the Great Hall of Parliament, Canberra, 24 May 2007, online at http://australiansall.com.au/archive/post/on-the-10th-anniversary-of-bringing-them-home/ (accessed 5 November 2013)
15. UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations, Australia, 20 October 2005, CRC/C/15/Add.268, para 38
16. Australian Human Rights Commission, Submission on the Senate Legal and Constitutional Legislation Committee on the Australian Citizenship Bill 2005 (online) http://www.humanrights.gov.au/citizenship-bill-2005 (accessed 5 November 2013)
17. NSW Council for Civil Liberties, Submission of the NSW Council for Civil Liberties to the Senate Legal and Constitutional Committee’s Inquiry into the Provisions of the Australian Citizenship Bill 2005 and the Australian Citizenship (Transitionals and Consequentials) Bill 2005 (2006) (online) http://www.nswccl.org.au/docs/pdf/citizenship%20submission.pdf (accessed 5 November 2013)