Aboriginal people and the law - Legal Information Access Centre

2 Aboriginal people and the law 51For further information see Circle Sentencing in NSW: AReview and Evaluation, 2003, NSW Aboriginal JusticeAdvisory Council.Children, women and familylaw[2.230] Protecting Indigenous childrenIn 1997 the Australian Human Rights Commissionreported on the Inquiry into theSeparation of Aboriginal and Torres StraitIslander Children from their Families. Thereport, Bringing Them Home, proposed aframework of national standards to guidegovernments and other agencies in theprotection of Indigenous children.Major standards for the care and protectionof Aboriginal children in NSW, andtheir relationship to the standards proposedin the report, are as follows:• There is an initial presumption that it is inthe child’s best interest to remain withinthe family, community and culture. Indeciding whether it is in the child’s bestinterests to be taken into care and protectionthe court must consider:– the views of the child and the family– the need to maintain contact withcommunities and cultural heritage– the advice of accredited Aboriginalorganisations (standard 1)(see Children and Young Persons (Care andProtection) Act 1998 (NSW)).• In judicial or administrative decisionsrelating to care and protection the child’sbest interests should remain paramount(standard 2).• Detention of an Indigenous child is a lastresort. When deciding whether the dangerto the community as a whole outweighsthe desirability of keeping a childwith family or community, the court mustconsider imprisonment as a last resort(Children (Criminal Proceedings) Act 1987(NSW), s 33(2)) (standard 3).• When an Indigenous child or youngperson is involved in care and protectionmatters, an Aboriginal organisationshould be consulted and involved inevery stage of the process (See Childrenand Young Persons (Care and Protection) Act1998) (standard 4).• Indigenous children should have representationof their choice (or, where a childcannot make a choice, representation byan Aboriginal organisation) (standard 5).• When a child or young person is to beremoved from their family the followingoptions should be considered, in thisorder (standard 6):– placement with a member of the familyor kinship group, as recognised bythe community to which the childbelongs– placement with a member of the Aboriginalcommunity to which the childbelongs– placement with another Aboriginalfamily near the child’s usual home– placement by Family and CommunityServices, after consultation with thechild’s extended family and appropriateAboriginal welfare organisations.