Involving Aboriginal Children in Law and Policy-Making

Children are often used as political footballs thrown to force quick change. There is a reason why The Simpsons scene of Helen Lovejoy crying ‘Ohohoho, won’t somebody please think of the children?’ is a classic meme. In 2007 claims of endemic child abuse in the Northern Territory led to the Northern Territory Emergency Response (commonly known as ‘The Intervention’), a set of laws that quarantined welfare payments, banned alcohol, acquired native townships and increased police presence in ‘prescribed communities’. There was no attempt to consult with the communities or their children prior to this legislation coming into force.

I discussed the Intervention with Dr Holly Doel-Mackaway, who conducted field research with Aboriginal children and young people to seek their views about the measures. She highlighted that the Intervention exacerbated violations of Aboriginal children’s human rights: ‘During the Intervention, Aboriginal children and young people were removed from their families and from Country through the child protection and juvenile justice systems at a far greater rate than during the period known as the Stolen Generations.’ A year after the Intervention’s implementation, the government apologised to the Stolen Generations; during the Intervention, disproportionate numbers of Aboriginal children were placed into juvenile detention or out-of-home care, often hundreds of kilometres away from their communities.

A Bitterly Cold Climate

Dr Holly Doel-Mackaway is a senior lecturer at Macquarie Law School, researcher, lawyer and social worker specialising in the field of children’s rights. With over 25 years of experience, Dr Doel-Mackaway is committed to working toward positive social change and social justice. She started her career as a social worker with women and children who had experienced sexual abuse and domestic violence.

She reflected on this time:

‘I saw how the law impacts children and women with respect to their experiences of violence, abuse and neglect. I didn’t see the law working very well for women and children at all. I saw women and children cross-examined in criminal proceedings and retraumatised in the process, I saw them disbelieved and their credibility and competence questioned. In my career as a sexual assault and domestic violence counsellor I saw very few convictions for crimes against women and children.’

Frustration with how the law failed to uphold the rights of women and children lit a fire for Dr DoelMackaway. After practising social work she studied law in the hope of fighting for reparations for women and children as a barrister. Upon graduating, she instead worked as a Children’s Rights Legal Advisor for UNICEF Pacific. ‘I worked across 15 Pacific Island countries supporting the implementation of the Convention on the Rights of the Child (‘CRC’) into domestic legislation, policy and practice,’ she said, ‘It was during this time that I became deeply interested in the role of international human rights law, and I developed a solid understanding of the Convention.’

Dr Doel-Mackaway’s research seeks to ‘interrogate ways in which the law protects, empowers and also negatively impacts the lives of children and young people’ to highlight the need for institutional reform. She does this by engaging children and young people in field research seeking their views about legal issues impacting them.

Having advised governments and NGOs on international children’s rights, I asked her about Australia’s compliance with the CRC. Despite Australia being a party to the CRC, Dr Doel-Mackaway is critical of successive Australian governments’ poor commitment to advancing children’s rights nationally, especially Indigenous children’s rights. Quoting Professor Laura Lundy, Dr Doel-Mackaway said, ‘it’s a cold climate for children’s rights’ globally.’ She added that ‘it is bitterly so in relation to the rights of Aboriginal and Torres Strait Islander children and young people.’ She described the context for Aboriginal children’s rights as an ‘absence of rights.’ She said Australia lacks both a federal children’s rights act and a constitutionally enshrined bill of rights. Without a national framework to support the realisation of children’s rights, Dr Doel-Mackaway said the absence of rights ‘has extremely harmful impacts on Aboriginal children and young people.’

She pointed to the violations of Indigenous children and young people’s rights in Australia, including the extraordinarily high rates of Indigenous youth incarceration — approximately 25 times higher than non-Indigenous youth — and the fact that Indigenous children are being removed from their families and from Country through child protection systems at 10 times the rate of non-Indigenous children. She said: ‘We’ve got to really be thinking what on earth we are doing incarcerating children, especially disproportionate amounts of Aboriginal children?’

Dr Doel-Mackaway said incarcerating children rarely leads to positive outcomes. During the Royal Commission into the Detention and Protection of Children in the Northern Territory (NT Royal Commission) Dylan Voller, a young person incarcerated at Don Dale Youth Detention Centre, testified about the personal impact of incarceration. He said: ‘We are being further punished while in prison. Being sentenced by the judge to do the time for our crime is our punishment, not the continued mental and physical abuse that we continue to cop while here.’ Throughout our interview, Dr Doel-Mackaway described the treatment of children in youth detention as ‘torture.’ Quoting evidence from the NT Royal Commission, Dr Doel-Mackaway painted a picture of children held in solitary confinement for 17 continuous days, for 22 hours a day, being denied basic needs, subject to physical violence, strip-searched, caged in cells without air-conditioning in the Australian summer and sprayed with tear gas.

‘There’s a critical problem in this country regarding the torture and abuse of children in juvenile detention,’ said Dr Doel-Mackaway, ‘Incarcerating children is ineffective, punitive, draconian and it’s inconsistent with the rights of children and should only ever be used as a measure of absolute last resort.’ The incarceration of children is facilitated by the very low age of criminal responsibility in all Australian states and territories, set at 10 years old. This means that ‘very young children are being locked up in prison-like conditions in contravention of their human rights.’ This was the case with Dylan Voller who was first incarcerated at 11.

Dr Doel-Mackaway stressed that while the low age of criminal responsibility permits the incarceration of 10-year-old children, ‘these laws predominantly facilitate the incarceration of Aboriginal children not non-Aboriginal children. This is seen in the extraordinarily high rates of Indigenous young people being channelled into the judicial system, something non-Indigenous young people do not experience to the same degree. Thus, the very low age of criminal responsibility is used almost exclusively to imprison Aboriginal children.’ When I asked Dr Doel-Mackaway how high the age should be set, she said the Committee on the Rights of the Child recommends at least 14 years old (ideally 16 years old) because ‘non-judicial methods to address youth crime are the most effective globally.’ Dr Doel-Mackaway believes that increasing the age would not only improve outcomes for all children but also remove a key means by which the law directly discriminates against Aboriginal children.

Of course, increasing the age is not the only way to address the absence of rights for Indigenous children. Dr Doel-Mackaway, who teaches constitutional law, said, ‘it’s important that we acknowledge that our Constitution anticipates and permits racial discrimination.’ She gave the example of section 51(xxvi) — the power of Parliament to make special laws for any race — as a power that had ‘been used against Indigenous peoples such as the building of the Hindmarsh Island bridge on sacred land in the Kartinyeri case.’ ‘Constitutional transformation,’ she said, ‘is necessary to overcome so many forms of racial injustice that permeate the very foundations of Australia’s legal system.’

Law and Order and the Northern Territory

Earlier this year, major news outlets reported on alcohol-fuelled crime sprees by young people in Mparntwe (Alice Springs). These stories featured interviewees demanding the return of alcohol bans. I asked Dr DoelMackaway about the political effectiveness of law and order narratives and the ‘unruly

Aboriginal youth stereotype’ in implementing coercive policies.

‘This goes to the very core of how Aboriginal children and young people are stigmatised and perceived in the broader community,’ she said. ‘There is no overarching federal legislation or constitutional provision that enshrines at the domestic level the comprehensive body of international human rights law to which Australia is a party. This is a major deficiency in Australia’s legal framework. The absence of a human rights charter in our federal legislation and a context where racially discriminatory law and policy persists creates a ripe environment where assimilationist rhetoric can flourish and be legitimised.’

She drew a parallel to the Little Children are Sacred Report. Dr Doel-Mackaway said: ‘The first recommendation [of the Report], which was to “consult with Aboriginal communities” was ignored. Instead, the Report was used as a catalyst to bring into place the Intervention, in contravention of Australia’s human rights duties under the Convention on the Elimination of Racial Discrimination.’ To justify this contravention, the government suspended the Racial Discrimination Act under the ‘special measures provision’ by declaring the Intervention was an ‘emergency.’

Dr Doel-Mackaway said the Intervention was not about protecting Aboriginal children. ‘The words “children” and “young people” were used so few times across the Intervention legislation,’ she said, ‘that was one of the indicators that demonstrated that children were not at the centre of the Intervention.’ She referenced a 2011 artwork by Vernon Ah Kee called intervention invention which implied the Intervention was an emergency invented in response to troubling reports of abuse but used as pretext to control remote communities.

‘When you have an emergency and nonIndigenous legislators are rushing around in a moral panic — much like what happened in Mparntwe (Alice Springs) — this can legitimise a body of law-making that is inconsistent with human rights provisions.’

Dr Doel-Mackaway said that in relation to Aboriginal children, moral panic tends to promote interventionist law-making where governments intervene in Aboriginal people’s lives and control Aboriginal children. ‘We really need to counter these narratives and reject colonialist “policy on the run,”’ she said. ‘That’s what happened with the Intervention: it was policy on the run with some very sinister undertones about the real intentions of what this legislation was going to do.’ Dr Doel-Mackaway was exasperated when she told me about the impact of the Intervention: ‘What a disgusting outcome for laws that were supposedly about the kids.’

In relation to the situation occurring in Mparntwe (Alice Springs) Dr Doel-Mackaway said:

‘Everyone has a right to be safe. Crime must be addressed, that goes without question but punitive laws such as alcohol bans or “tough on youth” laws don’t work. Children have told me, top-down “whitefella law,” doesn’t work. Collaboration and seeking solutions must take place. Measures like those seen in the Intervention do not improve outcomes; instead, it legitimises the increase of racism in communities.’

When I asked her what she believed was the cause of unrest in the NT, she said.

‘The real problem is persistent governmental failures to uphold Aboriginal young people’s human rights. Defunding youth and family support services, legal services, ignoring young people and their voices — they’re key examples. Yet, blame for the problems in Mparntwe (Alice Springs) is directed towards young people while the systemic drivers of the alleged crime wave are completely overlooked. Looking at the symptoms of governmental failures and not at the governmental failure itself is a common colonial tactic used to further discriminate against Indigenous peoples.’

Children’s Voices and the Voice to Parliament

During our interview, Dr Doel-Mackaway highlighted the failure of governments to seek children’s input in decision-making. In her book, Indigenous Children’s Right to Participate in Law and Policy Development (published by Routledge, 2022), she proposed a fivestep dialogue model to assist governments in facilitating children’s participation in law and policy development:

1. Adopt a child rights-based approach

2. Address ethical considerations and consult with communities

3. Undertake preparatory activities with children and seek consent

4. Seek children’s views in safe, child-friendly and culturally appropriate ways; and

5. Ensure benefit and reciprocity.

‘Most children don’t like sitting face-to-face with an adult and being asked a million questions with direct eye contact. That’s a very adultist way of engaging with children,’ said Dr Doel-Mackaway, ‘this model adopts a child rights-based approach in engaging with children. It facilitates engagement with Aboriginal children and young people in a way that is culturally safe, friendly and uses methods that really speak to children and young people.’ While the model is universal, she said it is specifically designed to uphold the rights of Indigenous children and to empower their engagement with law and policy makers. She recommends governments should adopt this approach before implementing measures that will impact Aboriginal young people.

The rights-based approach Dr Doel-Mackaway’s model uses is distinct from the perspective of successive governments which have adopted a ‘welfare-based approach’ to Indigenous related law and policy development. Dr Doel-Mackaway described welfarist approaches as implementing measures that are deemed to be in children’s best interests. However those interests are not determined by the children concerned but are instead ‘determined by adults.’ The welfare-based approach contravenes children’s right to be heard and Indigenous peoples’ right to be consulted about decisions that may impact them under the CRC and the UN Declaration on the Rights of Indigenous Peoples respectively.

‘Part of my approach when undertaking research with children and young people,’ said Dr DoelMackaway, ‘is to spend at least half of the time getting to know the community before engaging them in research or consulting with them. This is an attempt to be less ‘extractive’, that is, it is not appropriate, as an outsider to an Aboriginal community, to go into communities and extract information. This is a very colonialist construction of research, widely criticised for being culturally inappropriate.’

Because children can feel easily intimidated by adults, child-friendly environments are very important. As an example, Dr Doel-Mackaway, draws on her experience as a children’s counsellor and employs play-based material in her research by using creative, child-friendly mediums such as making posters, using iPads, and using LEGO and construction tools as ways to allow children to express their views in addition to talking. Sometimes, dialogue does not even require the researcher to be in the room. One of the research tools Dr Doel-Mackaway employs is to provide children with iPads or other recording devices for young people to then interview each other using the video function to collect research data.

‘In these instances I am not involved in those moments with the children,’ said Dr Doel-Mackaway, ‘sometimes as an outsider to the children’s communities, involving myself could change what happens in the research, or children could be too shy to talk with me. Reducing the power differential between adult and child is very important, that’s part of adopting a children’s rightsbased approach to research.’

In the week the interview took place, the Federal Parliament passed the Referendum Bill. This is the final stage before the referendum question of whether an Indigenous Voice to Parliament should be enshrined in the Constitution is put to the Australian people. I asked Dr DoelMackaway what the Parliament should incorporate if the referendum succeeds. ‘It would be good for the government to seriously think about how Indigenous youth can contribute to the Voice to Parliament and what that could mean,’ she said, ‘Indigenous youth representation in the Voice, in my view, is vital to our democracy given the status of the absence of rights for Aboriginal young people in this nation. Indigenous youth are experiencing such high degrees of social discrimination against them, without their voices in the democratic processes, those inequities and injustices might not be fully addressed.’

She referred to an adage used by First Nations peoples: ‘Nothing about us, without us.’ She said, this should also apply to Aboriginal youth. ‘Sometimes adults speaking for young people isn’t sufficient. Young Aboriginal people have the right to have their voices heard and taken notice of.’

Reaching the end of our interview, I asked Dr Doel-Mackaway for any advice to students interested in pursuing a career in child law. She replied:

‘Some people think that studying child law is a niche area. I couldn’t disagree more. Children and young people are almost 50% of the global population and are a highly governed population with many laws and policies that apply to them. There is a huge need for more people to be doing more advocacy work in this area. It’s not just about, say, increasing the age of criminal responsibility, there’s so much scope to do more work. Let’s not forget the Convention on the Rights of the Child remains largely unimplemented in Australia.’

She pointed out that Belgium recently lowered the voting age to 16 for European Parliamentary elections, something which Dr Doel-Mackaway mentioned could be pushed in Australia soon.

‘Irrespective of whether children are enfranchised, there is an onus to advocate for those who cannot vote. That comes not only from international human rights law, it also comes from a moral duty to do so anyway.’

We should challenge ourselves to consider it our moral and legal duty to listen to those who are so often silenced in public debate and unnoticed in public decision-making processes. We need to start listening to Aboriginal young people to shape the kind of democracy we want to live in, one where there is a strong commitment from all sectors of society to end racial discrimination. Children are not political footballs to be kicked around to legitimise policies outside of their interests like the Intervention. The children are all of our future.

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