Indigenous Law Bulletin
by Vijaya Raman
Almost ten years ago, the United Nations Committee on the Rights of the Child (‘the Committee’) expressed serious concern about the ‘unjustified, disproportionately high percentage of Aboriginal children in the juvenile justice system’ in Australia.
Since then, has much changed? The statistics are shocking: while Indigenous people account for only 2.4 per cent of the Australian population, 57 per cent of young females and 46 per cent of young males in juvenile detention in Australia are Indigenous. Indigenous young people are 20 times more likely to be incarcerated than non-Indigenous young people.
Clearly the approaches undertaken to date to address this issue have had limited success. So what is the way forward? This article suggests that a human rights-based approach offers a framework for addressing this issue in an holistic manner.
A ‘human rights-based approach’ recognises everyone as having rights as well as obligations to others. It promotes justice, equality and freedom and addresses the fundamental issues underlying poverty and exploitation. This is achieved by focusing on strengthening the capacity of duty bearers and rights holders to obtain their rights through understanding and participation. One of the strengths of this approach is that it requires greater accountability on the part of states and enables the most deprived and excluded to be given priority.
The central standards in a rights-based approach relevant to custody of Indigenous children are found in Articles 37, 39 and 40 of the Convention on the Rights of the Child (‘the Convention’). These articles deal with torture, degrading treatment and deprivation of liberty; rehabilitation and reintegration; and the administration of juvenile justice respectively.
Three points are particularly relevant to Indigenous children in custody. Article 37(b) emphasises that the imprisonment of children should be exceptional: a ‘last resort’ and always ‘for the shortest appropriate time’.
Second, Article 37(c) stresses that children who are imprisoned should not lose their fundamental rights and that their treatment must take into account their age and development.
And finally, Article 40 emphasises that the general aim should be promoting a child’s sense of dignity and worth and her or his reintegration into the community. This article also calls for excluding younger children from criminal responsibility, avoiding judicial proceedings where appropriate, and promoting and utilising alternatives to institutional care.
The United Nations Children’s Fund (‘UNICEF’) has emphasised three principles that should guide a human rights-based approach to matters affecting children.
All human rights are interdependent and indivisible. Ensuring the rights of Indigenous children under Articles 37, 39 and 40 cannot be detached from other rights found in the Convention. The historical denial of Indigenous peoples’ rights and the ongoing systemic discrimination is fundamental to the issue of Indigenous children in custody. By extension, the rights-based approach requires that any attempt to address issues affecting Indigenous children is inextricably linked to the realisation of the right to self-determination for Indigenous communities.
What this means in practice is that a child rights-based approach calls for multi-sectoral and interdisciplinary actions to address the wide range of poor outcomes for Indigenous children generally, which contributes to the high rates of imprisonment of Indigenous children. Governments, non-government organisations, community members, parents and children must be involved in using various strategies to realise the rights of Indigenous children in custody. At the same time, programs that are successful in one context will not necessarily translate to success in another.
By ratifying the Convention, Australia has assumed a three-fold obligation: it is obliged to respect the rights of children; protect the rights of children from being violated by a third party; and ensure that the rights of children are met. Thus, Australia is required to develop social policies, legislation and other measures to ensure that all of the rights of Indigenous children are protected.
The Convention recognises, however, that the state party is not the only duty bearer; others are parents, caretakers, the international community and, in the case of Indigenous children, Indigenous communities. In fact, the Convention places primary responsibility for the upbringing and development of Indigenous children on parents or legal guardians. However, this does not absolve the federal, state and territory governments of responsibility, rather they are required to assist parents in the performance of their duties. Simultaneously, the federal government is required to empower Indigenous communities to take action to protect the rights of their children.
The term universality means that rights are not applied differently for those of different cultures or traditions. However, this principle recognises that the enjoyment of human rights is not always universal and there is a need to take action to facilitate this. Special attention will be needed for those children ‘who have remained invisible or forgotten and who are becoming increasingly vulnerable and marginalised.’ Thus, under a child rights-based approach priority must be given to the well-being of Indigenous children.
In addition to the three guiding principles there are four articles under the Convention that have been identified as the foundational principles of a child rights-based approach.
The best interests of the child must be a primary consideration in all decisions and actions that may affect them. Whilst this is not the only consideration, it must be given due weight relative to other interests.
Of course, one has to guard against the historical misuse of the concept of the best interests of the child, which was used to justify the forced removal of Indigenous children from their families. All of the rights detailed in the Convention inform this principle. Thus a rights-based outcome for an Indigenous child that undermines another right of that child cannot be said to be the child’s best interests. For example, the best interests of the child would need to be considered in a decision involving changes to an Indigenous child’s family structure, such as the incarceration of a parent.
The principle of non-discrimination, contained in Article 2 of the Convention requires Australia to protect Indigenous children from any form of discrimination. Australia is obliged to review and amend legislation, policy or practices that lead to disproportionately higher rates of incarceration of Indigenous children. Article 2 does not imply that all children must be treated the same and thus positive action to protect the rights of Indigenous children is not prohibited. In fact it is required.
The third principle is the right to life, survival and development as set out in Article 6(1) of the Convention. Australia has an obligation to ensure every Indigenous child is able to develop to their full potential and play a part in society. The child’s development is seen here as an holistic concept that encompasses the child’s ‘physical, mental, spiritual, moral, psychological and social development.’ For example, finding new and creative ways to ensure that the right of Indigenous children to their culture, religion and language is realised whilst in detention.
The final principle requires the voices of Indigenous children to be heard and respected. Article 12 places an obligation on Australian Governments to ensure that Indigenous children’s views are sought and considered in the creation, implementation and assessment of laws, policies and programs that impact upon them. Further, the right requires Indigenous children (and their communities) to have access to information in a way that is easily understood (including in the child’s language).
In the ten years since the Committee expressed concern regarding the disproportionate and unjustified incarceration of Indigenous children in Australia, little has changed. Urgent, innovative and holistic action is needed to address the high numbers of Indigenous children in custody. However, we need approaches that will achieve fundamental and long-term results.
Whilst a child rights-based approach is an evolving framework, at the very least the general and foundational principles outlined above must inform the process used to address this issue.  The concepts of universality, accountability, interdependence and indivisibility, non-discrimination, survival and development, participation and the best interests of the child must infuse all aspects of our responses.
Indigenous children’s rights can be used as a tool to empower, but can also be manipulated to further political agendas. However a child rights-based approach is, by definition, ‘intercultural and incorporates indigenous worldviews’.
Across the world, countries and communities that successfully ensure the rights of Indigenous children demonstrate that
the most effective initiatives help to develop community autonomy and empowerment, promote local indigenous languages and customs, respect traditional social structures and recognise the important role of indigenous leaders in defending and promoting the rights of their communities’ children.
Vijaya Raman is the Human Rights Policy Officer at the Public Interest Advocacy Centre (‘PIAC’).
 Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79 (10/10/97) .
 Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Strait Islander Australians 2001, cat no 4713.0 (2003) 15.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Indigenous Young People with Cognitive Disabilities and Australian Juvenile Justice Systems (2005) 8.
 Ibid 9.
 See especially, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Social Justice Report 2005 (2005) 9-95.
 Joachim Theis, Promoting Rights-based Approaches, Experiences and Ideas from Asia and the Pacific (2004) 2.
 Convention on the Rights of the Child, opened for signature 20 November 1989, (entered into force 2 September 1990). Australia signed in 1990 and it entered into force 1990.
 A child is anyone aged less than 18 years.
 UNICEF, Human Rights for Women and Children: How UNICEF Helps Make them a Reality (1999) 5-7.
 See generally, Australian Institute of Health and Welfare, Australia’s Young People 2003 (2003) 321-354.
 Convention on the Rights of the Child, above n 8, Articles 18 and 27.
 Ibid Article 18(2) ‘State Parties shall render appropriate assistance to parents and legal guardians in the performance of their child rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.’
 Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, Article 7(1) (entered into force 5 September 1991); See also Commission on Human Rights, UN Declaration on the Rights of Indigenous Peoples, Article 19.
 Marta Santos-Pais, A Human Rights Conceptual Framework for UNICEF (1999).
 UNICEF, above n 10, 8.
 Philip Alston and Bridget Gilmour-Walsh, The Best Interests of the Child: Towards a Synthesis of Children’s Rights and Cultural Values (1996) 6.
 United Nations Human Rights Committee, General Comment 18: Non Discrimination (37th Session, 1989), U.N. Doc. HRI/GEN/1/Rev.6 at 146 (2003).
 Committee on the Rights of the Child, General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child, CRC/GC/2003/5 (27 November 2003) para 12.
 Convention on the Rights of the Child, above n 8, Article 30.
 Dzodzi Tsikata, ‘The Rights-based Approach to Development: Potential for Change or More of the Same?’ (2004) 35(4) IDS Bulletin 2.
 UNICEF Innocenti Research Centre, ‘Ensuring Rights of Indigenous Children,’ (2004) 11 Innocenti Digest 22.