terri libesman

A decade from the time of writing, two practically and symbolically significant events took place with respect to Aboriginal and Torres Strait Islander peoples’ legal relations with the colonial state. The first was in June 2007, when the Australian federal government announced the Northern Territory Intervention under the Howard Liberal government. This program of law reform required suspension of the Race Discrimination Act 1975 (Cth) and the assumption, initially by the Australian Defence Force, of control over 73 Aboriginal communities in the Northern Territory. It was a program which was premised on the idea that Aboriginal peoples’ citizenship and human rights could be suspended until they conformed to a western notion of responsible behaviour—a theme that, as is demonstrated across this chapter, has a long lineage in Australian settler–state relations. (The NT Intervention is discussed further in a number of chapters but see in particular Chapter 3). In September 2007 the Dra...

Aboriginal and Torres Strait Islander Legal Relations Second Edition considers the contact of Aboriginal and Torres Strait Islanders with Anglo-Australian law, and deals primarily with the problems the imposed law has had in its relationship with Indigenous people in Australia. The book is comprehensive in scope and covers key issues relating to sovereignty, jurisdiction and territorial acquisition; family law and child protection; criminal law, policing and sentencing; land rights and native title; cultural heritage, heritage protection and intellectual property; anti-discrimination law; international human rights law; constitutional law; social justice, self-determination and treaty issues

The refusal of the Australian Prime Minister to apologise to the 'stolen generations' of Aborigines forcibly separated from their families, but only expressing regret for possible injustices, is criticised. His justification that white Australians of the present generation should not be held accountable for the actions of past generations, who may have considered them suitable then, is condemned.

This article examines why the human rights framework, recommended by Bringing them home, for reform of contemporary Aboriginal and Torres Strait Islander child welfare has not been effectively implemented almost 20 years post the Stolen Generations Inquiry. It critically examines the difference between a human rights framework for child welfare which embraces principles of self-determination and recognition of plural political values compared with a universal individual rights paradigm. It argues that while there have been deep set difficulties with implementing human rights which are pluralised and political in a liberal legal environment, the neo-liberal political and social values which have ascended post the National Inquiry are incompatible with and directly undercut the human rights framework recommended by the National Inquiry.

Case-based child welfare services, delivered by bureaucratic government departments and in empirical data do not provide good outcomes for Indigenous children and young people. Further, an individualised approach conceals the systemic factors which drive inequality and high levels of contact with child welfare systems in particular with respect to neglect. This chapter examines why decision making within bureaucratic child welfare departments does not attain good outcomes for Indigenous children and why a policy of self-determination, within a human rights framework, is likely to provide a better framework for decision-making. This chapter considers the relationship between modes of decision making and the exercise of moral agency by decision makers and why valid and legitimate decision with respect to Indigenous children's well being need to substantially include Indigenous experience in the decision making process. Consideration is given to the justification for separate Indig...

The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families found that child welfare and juvenile justice departments are failing Indigenous families across the country. 1 They specifically noted that if interventions into Indigenous families were to bring some benefit, they needed to be completely overhauled.' Subsequent research into the NSW Department of Community Services found that while many Indigenous children are trapped in circumstances where they experience traumatic events as a 'normal' part of their daily lives, the Department demonstrated little awareness of the intergenerational effects of trauma, and in many cases abandoned any real commitment to assisting these children.' The Federal Government is embarking on an early childhood agenda. If this agenda is to substantially assist Indigenous children, it needs to thoroughly understand the colonial experience that in obvious, as well as more subtle and co...

In February 2007 the First Nations Child and Family Caring Society of Canada (Caring Society) and Assembly of First Nations (AFN) lodged a discrimination claim against Canada under the Canadian Human Rights Act 1985 (CHRA) claiming inequality in funding of child welfare services to First Nations children on reserves. This case, which seven years later is still being litigated, reveals the colonial presumptions which surface when human rights claims challenge the states’ social and economic exercise of power through its monopoly over the distribution of resources. Canada’s attempts to hide behind technical arguments illustrate how fragmentation of legal and moral responsibility and formalistic decision-making serve to deflect attention from and responsibility for the systemic inequalities experienced by Indigenous children.

The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families found that child welfare and juvenile justice departments are failing Indigenous families across the country. 1 They specifically noted that if interventions into Indigenous families were to bring some benefit, they needed to be completely overhauled.' Subsequent research into the NSW Department of Community Services found that while many Indigenous children are trapped in circumstances where they experience traumatic events as a 'normal' part of their daily lives, the Department demonstrated little awareness of the intergenerational effects of trauma, and in many cases abandoned any real commitment to assisting these children.' The Federal Government is embarking on an early childhood agenda. If this agenda is to substantially assist Indigenous children, it needs to thoroughly understand the colonial experience that in obvious, as well as more subtle and co...

Many of the problems associated with child abuse and neglect in communities are directly related to experiences of colonisation. Indigenous peoples in different countries and communities may have experienced colonial processes differently, but have experienced some common impacts. This paper provides a review of legislation and services delivered to Indigenous communities in Canada, the United States and New Zealand. While some of the issues and ideas may be useful and relevant in the Australian context, a key finding in the research is that a “one size fits all approach” does not work. Particular attention is paid to new approaches to family and community wellbeing that focus work on community strengths and healing, and provide a less problem-focused picture of Indigenous communities. There has been much interest in overseas legislative reform that transfers real authority for children and families’ wellbeing to Indigenous communities. This is widely considered to be important to t...

... This definition arose in recognition of the sovereign nature of Indigenous groups: each nation ... of Georgia to make laws which undermined the Cherokee Nation's laws and which ... The Inquiry addressed specific child welfare and juvenile justice legislative reform in the context of ...