Event Report: The UN Declaration on the Rights of Indigenous Peoples and Child Placement Principles
Date: Tuesday, 28 June 2022 Time: 1:00pm – 2:30pm AEDT Venue: YouTube Live via Zoom Speaker: Dr Virginia Marshall
About the Presenter:
Dr Virginia Marshall, Wiradjiri Nyemba yinaa, is Principal Lawyer in her firm, Triple BL Legal practising in native title, Traditional Knowledge protection and human rights. Virginia led the inquiry for income management as Senior Legal Officer with the Australian Law Reform Inquiry into Family Violence and Commonwealth Laws and is a former committee member for the NSW Law Society (Human Rights, Litigation, Alternative Dispute Resolution, and an inaugural member of the Indigenous Issues committee). Virginia is the leading legal scholar on Indigenous Australian water rights and has been recognised by the University of Victoria BC as a Distinguished Woman Scholar. Virginia was also the national winner of the AIATSIS WEH Stanner Prize for best Indigenous thesis. Virginia authored the award-winning book ‘Overturning Aqua Nullius: Securing Aboriginal water rights.’
On Wednesday the 28th of June, the National Family Law Pathways Network ran a webinar on the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and Aboriginal and Torres Strait Islander child placement principles. The event involved Dr Virginia Marshall speaking about the international law principles surrounding the rights of Indigenous children and Australia’s implementation of child placement priorities thus far. Commencing the presentation, Virginia spoke about human rights as more than abstract concepts which exist only in documents. Human rights only become meaningful when they can be exercised. As such it is critical for Aboriginal and Torres Strait Islander peoples to be empowered and involved in child placement principles and interventions directed and implemented on or on behalf of their own community. Virginia referenced the 1991 Aboriginal Deaths in Custody Royal Commission National Report which outlined the three essential pre-requisites to the empowerment of Aboriginal society:
The will to renewal and self-determination
The assistance of the broader society, government, and the electorate, to achieve the economic base from which Aboriginal people have been dispossessed
Implementation of a policy of Aboriginal self-determination, which underpins a large majority of the Royal Commission's recommendations
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is the most comprehensive international instrument on a wide spectrum of Indigenous rights. It recognises the rights of Indigenous families and communities to retain shared responsibility for the upbringing, training, education, and well-being of their children, consistent with the rights of the child. Virginia noted the importance of Indigenous peoples having the right to participate in decision-making for matters which would affect their rights, such as with child-placement and child protection interventions. Article 7(2) of the UNDRIP states that Indigenous peoples shall not be subjected to any act of violence, including the forcible removal of children to another group. Virginia recognised that one of the factors causing increasing rates of over-representation for Indigenous children in the statutory child protection system is the intergenerational effects of forced removal.
The Aboriginal Child Placement Principle states that Aboriginal children have a right to be raised in their own family, culture and community and that removal of any Aboriginal child must be a last resort. The Principle evolved from a community movement by Aboriginal and Torres Strait Islander childcare agencies advocating for the best interests of Indigenous children and to abolish forced removal policies. Virginia noted that whilst the Principle is included in the National Framework for Protecting Australia's Children, there are barriers limiting its implementation. The increasing over-representation of Indigenous children in the child protection system and the shortage of Indigenous foster and kinship carers being the main ones.
The peak non-governmental body in Australia for Indigenous childcare is the Secretariat for National Aboriginal and Islander Child Care (SNAICC). Virginia noted the good work being done by SNAICC to reduce the disproportionate representation of Indigenous children in the child protection system.
Questions and discussion
The Federal Circuit and Family Court of Australia have recently introduced the change that First Nations children have a right to be connected to culture. Have you seen any positive benefits from this?
Virginia acknowledged that this is a positive step however there are so many different sections of the UNDRIP that need to be coordinated as there is still disconnect between the Family Court and child protection authorities. Constitutional recognition by states and territories would go towards legal effect and the exercise of powers. There is also further need for a Bill of Rights.
2. With the new Federal Government, what do you think will be the major hurdles to a successful referendum to bring into effect the Uluru Statement from the Heart?
Virginia noted that the crossbench and opposition are likely to be an issue in moving forward with the Uluru Statement as they may try to weaken it. Moving forward and becoming a better country requires our elected representatives to understand that this is a critical issue. There needs to be more people demanding that the Statement is accepted, and Australians need to be active in the democracy to show our elected officials that we want to see change.