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… better education, awareness, preventive policies and measures rather [than] reactive … System is a barrier … We want culturally appropriate service, non-restrictive service profession. Looking at whole aspects of that women’s voices. It needs to be prioritised in a holistic sense. Governance and oversight from leaders, Aboriginal elected body. Solution driven by community with government to drive ...
Harmful behaviours, arising from the compounding effect of generations of systemic disadvantage, discrimination and trauma, and fuelled by the toxic mix of alcohol and drugs, are threatening the safety and freedoms of Aboriginal and Torres Strait Islander women and girls. Throughout this chapter, women and girls discuss the prevalence of alcohol and drug abuse, addictions such as gambling, family violence, sexual assault and abuse and how they are both a cause and consequence of one another. These harmful behaviours are debilitating and disproportionately impact Aboriginal and Torres Strait Islander women and girls who are often marginalised from decision-making, overwhelmingly carry the responsibility to care for large and extended families, and experience multiple intersecting inequalities including in housing, economic security, employment and education. The clear message in this chapter is that we must urgently address systemic factors to break cycles of trauma, violence and harm in this generation.
This chapter reflects the voices of hundreds of women and girls and their resilience, aspirations, solutions and determination for better outcomes. Women have a long history of driving community-led responses to harms but have identified that these interventions cannot happen in isolation and must be supported by investment in wrap-around supports, safe houses and alcohol and drug rehabilitation services. Ultimately, women envision a holistic system of supports drawing on their inherent cultural and social strengths and grounded in their self-determination. Women, through firsthand experience, know what is required for their children and families to have healthier and safer existences and they must be empowered and enabled to inform the design and implementation of policy and systems addressing the harms in their lives.
Chapter 6 Law and justice
Disadvantage and intergenerational trauma are the main drivers in Aboriginal and Torres Strait Islander women and girls having contact with the criminal justice system. Throughout this chapter, women and girls emphasise the impact of family and sexual violence, poverty and homelessness, and mental health and cognitive impairment as having a significant impact on the likelihood of incarceration. Aboriginal and Torres Strait Islander women and girls are statistically more likely to be the victims of crime and violence than non-Indigenous women, and their offending behaviours are often intimately connected to these experiences and the trauma that has resulted.[i] Women and girls were clear that the system that incarcerates them at 21.2 times the rate of non-Indigenous women,[ii] also frequently fails to protect them.
This chapter depicts the current situation of law and justice as experienced by women and girls, including: mistrust and fear of police; police inaction; discrimination and targeting; deaths in custody; conditions in prison; access to services; and the impact of incarceration. The women and girls whose voices are relayed in this chapter see the possibility of a better system. One that is grounded in community-led solutions; constructive relationships with police; proactive diversionary approaches; justice reinvestment; alternative sentencing; stronger resourcing of remote communities; and cultural representation in courts and legal services. Women are determined to break the cycle of offending and re-offending and are clear about the need for institutions and policies to be reconstructed from the ground up, designed and governed by women and communities, and informed by their culture and ancient knowledges.
Chapter 7 Child protection
Aboriginal and Torres Strait Islander children are currently 10 times more likely to be taken away from their families than non-Indigenous children—and this number is predicted to grow.[iii] There is a strong sense amongst Aboriginal and Torres Strait Islander women that we are seeing a second Stolen Generation. Throughout this chapter, women shed light on the reality of their interactions with the child protection system and what desperately needs to change. Women emphasise that for every child removed into care, there is a family that did not receive the support they needed, whether it was in relation to poverty and marginalisation, adequate and safe housing, or family violence support.
Throughout this chapter, women clearly articulate the link between the child protection system and poor outcomes in education, health and employment, and the intersection with the criminal justice system. Women also raise their deep concerns for children placed in out-of-home care away from country, family and culture and what this means for the continuation of their culture. Throughout this chapter, women are calling for a system that empowers and enables the self-determination of Aboriginal and Torres Strait Islander families and communities in the care and protection of their children. Culture and community are what keeps children strong and women want a system that acknowledges this and prioritises the reunification of children with families, communities and culture.
All people have the right to live and grow in healthy and safe homes and communities, free from the threat of violence, abuse and discrimination. Guaranteeing basic rights, such as secure housing, education, financial security, health and non-discrimination, as well as maintaining connection to culture, is critical in reducing community-wide harms and interactions with the criminal justice and child protection systems. In recognising these rights, and grounded in our right to culture and self-determination, we can advance the equality, safety and wellbeing of our women and children.
Right to freedom from violence
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[iv] requires states to take ‘all appropriate measures, including through legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men’ (Article 3). Articles 2,5,11,12 and 16 of CEDAW require states to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life. There is a close connection between discrimination against women, gender-based violence, and violations of human rights and freedoms, including:
- The right to life
- The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment
- The right to liberty and security of person
- The right to equal protection under the law
- The right to equality in the family.
Aboriginal and Torres Strait Islander women and girls experience a heightened vulnerability to harm as a result of intergenerational poverty and intersectional discrimination, as well as multiple barriers in securing and realising their rights. The systemic issues of poverty and disempowerment must be addressed to ensure the safety, wellbeing and freedom of Aboriginal and Torres Strait Islander women and girls.
Further, to ensure women and girls enjoy the full rights under international law, CEDAW places a positive obligation on states to ‘modify the social and cultural patterns of conduct of men and women’ so as to eliminate ‘prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (Article 5). The Convention provides a positive legal framework to advance gender equality and eliminate norms that perpetuate violence.
Rights of children
The particular vulnerability of children is recognised in the Convention on the Rights of the Child (CRC).[v] Key articles include:
- Article 3: in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
- Article 9: a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
- Article 27: states recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
- Article 30: a child belonging to a minority or who is Indigenous shall not be denied the right to enjoy his or her own culture, or to use his or her own language.
- Article 34: states undertake to protect the child from all forms of sexual exploitation and sexual abuse.
- Article 18: parents and legal guardians for the upbringing and development of the child. States are to ensure appropriate assistance to parents and legal guardians in this role including through supports, institutions, facilities and services.
In General Comment 16, the Committee on the Rights of the Child affirms states have an obligation to protect against infringements of rights guaranteed under the CRC[vi] and must take all necessary, appropriate and reasonable measures to prevent abuses of children’s rights.
United Nations Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[vii] also recognises the following rights in support of strong families and communities. Including the right to:
- Article 5: maintain and strengthen their distinct political, legal, economic, social and cultural institutions.
- Article 11: practise and revitalise cultural traditions and customs.
- Article 13: transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures.
- Article 18: participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
- Article 19: have governments to consult and cooperate in good faith with indigenous peoples, through their own representative institutions, in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
- Article 22(2): have governments take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
[i] Australian Law Reform Commission, Pathways to Justice–An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (2017) <https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf>.
[ii] Australian Law Reform Commission, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (2017) <https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf>.
[iii] Family Matters, The Family Matters Report 2019 (2019) <https://www.familymatters.org.au/wp-content/uploads/2020/02/1097_F.M-2019_LR.%C6%92updated.pdf> 9.
[iv] Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
[v] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[vi] UN Committee on the Rights of the Child, General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children's rights, UN Doc CRC/C/GC/16 (17 April 2013).
[vii] United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, UN Doc A/RES/61/295.