Indigenous Law Bulletin
by Tonia Brajcich
On 14 January 2004 the Western Australia (WA) Government announced and sought public comment about a proposal to introduce Parental Responsibility Contracts and Orders.
The Government says the proposal aims to achieve increased capacity for parents to parent, the improved socialisation of children, improved school attendance, reduced anti-social behaviour and reduced juvenile crime.
In addition to seeking public comment on the legislative proposal, the Government is considering versions of Parental Responsibility Contracts and Orders operative in New South Wales (NSW) and in the United Kingdom (UK).
The NSW version focuses on making parents ensure their child does or does not do certain things, on threat of criminal law penalties if the parent fails to do so. This version has been tried in Orange, a place with a high Indigenous population. It has been unsuccessful.
The UK version focuses on parental education, with optional requirements that the parent make sure the child does or does not do certain things. This version has apparently been successful in situations where parents undertook the programme voluntarily. There was however community outrage when a mother was gaoled due to her daughter’s persistent truanting.
The Aboriginal Legal Service of Western Australia (ALSWA) believes that legislating Parental Responsibility Contracts or Orders in WA, so that people can be bound to raise their children in a particular way, would be ineffective and harmful for Indigenous people.
Historically, Western Australian Indigenous people have been disproportionately and detrimentally affected by Government policies. In particular, the effect of the assimilation policies (which also concerned parenting styles) on Western Australian Indigenous people was devastating. That trauma is still acutely felt today.
Thus Western Australian Indigenous people have only been permitted to exercise responsibility for raising their own children over the last 30 to 40 years. Tragically, this permission was only granted after past Government policies had damaged the capacity of some Indigenous people to do so.
This history shows that mandatory changes to parenting style can have unintended and very harmful effects, even if the intent was otherwise. Research is needed to ensure that any change the Government now makes is effective and not harmful. ALSWA knows of no research showing what sort of programme would work best for Indigenous people. The NSW version has not been successful. The UK version has not been tried on people with the kind of pre-existing history, mistrust and fear of the Government that Western Australian Indigenous people have.
This fear and mistrust means that Western Australian Indigenous people are unlikely to want to do a compulsory parenting programme, particularly if it involves any agency associated with past assimilation policies. It seems unlikely that the programme could achieve lasting positive change in children’s behaviour if family participation is strongly involuntary.
Furthermore, unwilling Indigenous participants are likely to fear admitting to difficulties with children might lead to the child’s removal from their care. It might also lead to the use of extreme measures to make sure children behave. Thus instead of developing the kind of parenting and strong carer-child relationship the Government intends, involuntary participation might achieve the reverse.
There are also problems with enforcing a Parental Responsibility Contract or Order. First, since there could be several people culturally responsible for raising the child, imposing a particular requirement on an Indigenous parent may interfere with the role of other relatives.
Second, Indigenous people are already over represented in poverty statistics and in the criminal justice system. This causes social disadvantages that lead children towards the very behaviour the Government wants to avoid. Enforcing a contract or order by a fine or imprisonment is likely to aggravate these factors, not reduce them.
Third, there is a basic inconsistency in making A liable for B’s behaviour when B can act independently of A.
Fourth, the use of Parenting Responsibility Contracts and Orders to mandate parenting style in the end amounts to parenting by the courts. This is not a way to get capable or consistent parenting. Instead it is likely to increase stress and conflict in the child’s home.
There are several alternatives to the legislation available to the Government.
The Government could legislate to appoint an independent Commissioner for Children to research and implement a way to effectively address the multiple causes of disadvantage for Indigenous children, including those that lead to juvenile delinquency. The WA Government is currently considering whether and how to establish this role.
The Government could institute policies to ensure agencies working with Indigenous families develop culturally appropriate child care practices. This would stop those agencies unintentionally undermining Indigenous families in raising their children. For example fewer children would be needlessly apprehended if child welfare authorities understood that when an Indigenous child talks about “flogging” or “killing” by a carer, the child is probably referring to smacking or “telling off”.
The Government could give Indigenous families the opportunity to learn how to improve parenting skills, not compulsorily or legislatively, but voluntarily. The most effective programme is a matter for proper research, but it should probably:
1. Have content appropriate to the child’s particular culture and be delivered by culturally-appropriate means;
2. Be available to all those culturally responsible for raising the child (and not be called a “parenting” programme, but a programme for “raising/bringing up/growing up” children instead);
3. Be available (consistently) where Indigenous people live; in regional and remote areas as well as metropolitan areas;
4. Be at a location and time that allows Indigenous people easy access and flexibility if people need to attend other high priority cultural obligations;
5. Be affordable for Indigenous people;
6. Be available on a predominantly self-referral basis but also accept referrals (with the participant’s consent) from alternative gateways such as an agency involved with the family. This would require effective marketing of the service both within and outside Indigenous communities;
7. Be independent of systems and agencies that have negative associations for Indigenous people;
8. Be strictly voluntary;
9. Be strictly confidential unless that would place a child in danger. This rule should be understood by participants before the programme commences;
10. Be marketed (and intended) to provide an opportunity to learn to care for children, not as a penalty for “problem” children.
The Government could develop a more culturally-appropriate education system. This would improve what ALSWA understands is the current exclusion rate of Indigenous children from WA public schools – about 30%.
For example, if schools seriously work to eliminate racism, Indigenous children will not feel they have to avoid school (truancy) or use self-help (violence to the perpetrator) to stop racist taunting. School curriculums could include more about Indigenous history and the many positive contributions made by Indigenous people to Australia. This would alleviate Indigenous children’s feelings of alienation at school.
Finally, the Government could address negative social factors. Indigenous people are over-represented in homelessness, overcrowding, unemployment, poverty, poor nutrition, poor health, low life expectancy, high infant mortality, unemployment, the criminal justice system (as both offenders and victims), discrimination and so on.
Medical research indicates that addressing these negative social factors is likely to be very effective in reducing the number of children with behavioural problems.
Although ALSWA agrees that many children do have problems needing to be addressed, ALSWA does not support the Government’s proposed legislation because it would be ineffective and harmful for Indigenous people. This is an opportunity for this Government to avoid repeating mistakes made by previous Governments.
The better approach is the introduction, subject to careful research, of various other programmes working together to ensure Indigenous people can properly raise their children.
ALSWA argues that this alternative proposal emphasises the primary responsibility Western Australian Indigenous families have to raise their children appropriately, and the twin responsibilities the WA Government has to ensure they are not undermined in doing so, and that there is a safety net available if needed.
ALSWA believes that this alternative approach is the best way of ensuring that Indigenous families are able to raise their children to be happy, healthy, responsible and resilient – the mutual aims of the Government and Indigenous people.
Tonia Brajcich is the Manager of Legal Services at ALSWA.
 ALSWA gratefully acknowledges the assistance provided by the Aboriginal Legal Services in Dubbo and Cowra, Legal Aid in Orange and Orange Police Station’s Aboriginal Community Liaison Officer with research into the NSW version.
 Paper “Overt and Covert Forms of Racism in Western Australian Education Systems” by Dennis Eggington, previously provided to the Government.
 ALSWA gratefully acknowledges the assistance from the Telethon Institute for Child Health Research with this research.