Children’s voices and an Australian Charter of Rights

The stories shared in the Ngaga-dji Report detail serious breaches of First Nations young people’s human rights and a failure of the Victorian Government and affiliated agencies to uphold them. The stories reveal chronic structural discrimination and ongoing systemic failures to respect, protect and fulfil young First Nations people’s rights in child protection, juvenile justice and out-of-home care settings.

Unfortunately, these rights abuses are not only occurring within Victoria but are widespread across these settings nationally. This amplifies the significance and relevance of the Ngaga-dji Report at both the State and National levels, including the need for an overarching Australian Charter of Rights to enshrine international human rights norms into the Australian legal framework.

I am a children’s rights lawyer and Senior Lecturer at Macquarie University Law School living and working on the Country of the Wattamattagal clan of the Darug Nation. In this article, I discuss the challenges that report raises in relation to First Nations young people’s human rights, and the urgent requirement that the Australian Government honour its commitments under international law.

When I read the report, I was struck yet again by Australia’s appalling human rights record in relation to First Nations children and young people. Despite the operation of the Charter of Human Rights and Responsibilities Act 2006 in Victoria, the accounts by Binak, Mirrim Nga-Ango and Murrenda articulate the lack of human rights in State institutions.

In Our Greatest Challenge: Aboriginal Children and Human Rights, Noongar woman, academic and lawyer Hannah McGlade characterises Aboriginal young people’s human rights as the ‘greatest challenge’ facing Australia. The Ngaga-dji Report highlights this challenge by shining a spotlight on the inadequate implementation of human rights provisions and protections for young Aboriginal peoples and the urgent need to address this. This is a particularly pertinent challenge for legislators and policy-makers at Federal, State and Territory levels.

Efforts to develop an Australian Charter of Rights have failed, resulting in the lack of an overarching Federal legislation or constitutional provisions that enshrine the comprehensive body of international human rights at the national level.

Australia is the only democratic nation without a national Charter (or Bill) of Rights. This is a serious deficiency in our legal landscape with particularly negative consequences for the promotion, fulfillment and protection of Aboriginal children and young people’s rights. This contributes to the myriad of other factors that lead to frequent, serious and ongoing breaches of Aboriginal children and young people’s rights throughout Australia, such as those outlined in the Ngaga-dji Report.

The Ngaga-dji Report calls for urgent action to address human rights breaches in the juvenile justice, child protection and out-of-home care systems. The report communicates a call to end the incarceration of First Nations children and young people. Raising the age of criminal responsibility from ten to a minimum of fourteen (preferably fifteen or sixteen, in line with the UN’s guidance) across all Australian States and Territories would significantly reduce State capacity to imprison First Nations children.

Raising the age of criminal responsibility could compel the development and implementation of alternatives to the formal criminal law system and counter the over-representation of First Nations children in the juvenile justice system. The very low age of criminal responsibility in Australia in comparison with other similar countries, empowers and enables the over-policing and incarceration of First Nations children. Raising the age of criminal responsibility could drive a fundamental restructure of the way white settler law interacts with First Nations young people, and could be one of the most influential legal reforms that supports the development of juvenile justice systems that relate to First Nations children without resorting to judicial proceedings.

The stories of Binak, Mirrim Nga-Ango and Murrenda illustrate the critical need to redesign, rethink and restructure the way the State interacts with Aboriginal children and young people. The development of an Australian Charter of Rights would change the ‘human rights climate’ in Australia and could compel legal recognition of human rights, and possibly also foster a culture of respect for human rights and children’s rights.

A Charter that encompasses comprehensive provisions to promote, protect and fulfil First Nations children and young peoples right’s, is a matter of national urgency and would play a significant role in reshaping the relationship between the State and First Nations children and young people: one that is based on a duty to advance the realisation of children’s rights. A Charter of Rights could embed international human rights law to which Australia is a party into domestic legislation. This includes, for example, the provisions contained in the Convention on the Rights of the Child, the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and all other human rights instruments to which Australia is a party or has endorsed (as is the case with the UNDRIP). A Charter would bring Australia’s human rights legislation in line with all other democratic nations.

A Charter will not solve the challenges Australia experiences upholding human rights, but it would provide a firm legal basis to attempt this and could significantly improve the goal of advancing young First Nations people’s rights.

Importantly, however, young First Nations peoples must play an active role in shaping an Australian Charter of Rights to ensure reforms encompass their perspectives and concerns, such as those highlighted in the Ngaga-dji Report. In contravention of Australia’s duties under article 12 of the Convention on the Rights of the Child First Nations young people are rarely involved in designing laws and policies that are likely to impact them; laws are generally made about young people rather than with young people. A notable exception was the development of the Charter of Human Rights and Responsibilities Act 2006 in Victoria, which did involve input from young people. However, listening to and responding to the voices of young First Nations people is a key, but under-utilised, means to shape law reform.

An Australia Charter of Rights, developed in conjunction with First Nations young people, could provide a legal framework to address entrenched and systemic abuse within and by State based institutions. Ending the over-representation of First Nations young people in the child protection, juvenile justice and out-of-home care systems will require more than law reform, but a Charter of Rights is a positive step towards this.

 

Cover image: Jacob Komesarof, Koorie Youth Council

Read the rest of Reflections on Ngaga-Dji: listening for change, edited by Sophie Rudolph and Claire Loughnan

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Holly Doel-Mackaway is a Senior Lecturer at the Macquarie Law School. Her research focuses on children and the law and interrogates the legal relationship between children and the State under the UN Convention on the Rights of the Child. Before becoming an academic Holly worked as a children’s rights lawyer in the international development sector with a range of organisations including UNICEF, Save the Children, Plan International and Childfund.

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