The Time Is Now: Reclaiming Child Protection Decision Making Within Australia

Abstract

This article draws upon the findings of a Churchill Fellowship that the author undertook in 2023 exploring how First Nations people and their communities internationally are reclaiming child protection decision making. From visiting Aotearoa (New Zealand), the United States of America, and Canada as well as the experiences of Queensland and Victoria in Australia, the author will highlight the preconditions to change; the processes that First Nations communities and their community-controlled organisations engaged in; the strengths and limitations of these approaches; and what has maintained and supported long-term change. The findings in this article aim to contribute to the key elements for guiding the development of a roadmap for Aboriginal and Torres Strait Islander communities to engage in their own journey of reclaiming child protection decision making within Australia.

1. Introduction

In Australia, Aboriginal and Torres Strait Islander children are over-represented in the Child Protection system. As of June 2022, the Australian Government Productivity Commission (2022) reported that Aboriginal and Torres Strait Islander children aged 10–17 years made up 43.7% of children in this age group in care, despite Aboriginal and Torres Strait Islander children in this age range making up only 6% of the Australian population.

This is a staggering statistic and one that has continued to worsen over time. These figures are even more poignant when you consider that The Bringing Them Home report in 1997, detailing the historical impacts of forced removal of Aboriginal children from their families over the previous 200 years, highlighted that in 1993, Aboriginal and Torres Strait Islander children made up 19.6% of children in care (Australian Human Rights Commission 1997b). Australia must do better, but change can only be achieved by allowing Aboriginal and Torres Strait Islander communities to make decisions that impact upon their most valued members, their children and young people (Australian Human Rights Commission 1997a).

Aboriginal and Torres Strait Islander leaders, advocates, and communities have been calling for significant transformation of colonial settler systems for over 50 years. As stated by (Libesman et al. 2024), “The findings from child protection research, reviews and inquiries since Bringing Them Home provide consistent evidence of the importance of First Nations’ self-determination in child protection law, policy, services and decision-making” (Libesman et al. 2024, p. 54).

Within the last five years, the Australian Government has made a commitment to transformational change of Government systems through the National Agreement on Closing the Gap, also known as “the National Agreement” (Closing the Gap 2020a), and the Safe and Supported: National Framework for Protecting Australia’s Children 2021–2031, also known as the “National Framework” (Commonwealth of Australia 2021). The National Agreement acknowledges that there must be structural change and that Aboriginal and Torres Strait Islander people must be afforded the opportunity to drive, determine, and have outcomes that they desire (Closing the Gap 2020a). This includes priority reforms for shared decision making, strengthening Aboriginal and Torres Strait Islander community-controlled approaches and transforming governments and other non-Aboriginal and Torres Strait Islander systems and organisations, supported by improved data in the hands of Aboriginal and Torres Strait Islander communities (Closing the Gap 2020a).

Furthermore, the Aboriginal and Torres Strait Islander First Action Plan, developed as part of the National Framework, includes as its first action the transfer of child protection authority to Aboriginal and Torres Strait Islander communities, stating that “community control is an act of self-determination and that Aboriginal and Torres Strait Islander community-controlled organisations (ACCOs) deliver better results for Aboriginal and Torres Strait Islander children, young people, and families” (Commonwealth of Australia 2022, p. 22).

Despite these bold commitments, the Productivity Commission’s first review of the National Agreement found that implementation of the priority reforms is weak and that there have only been tweaks to the ‘business-as-usual’ approaches of government departments (Australian Government Productivity Commission 2024). There is an immediate need for action.

This paper explores insights gained from an examination of initiatives to transfer authority for statutory child protection powers and functions in Aotearoa (New Zealand), the United States of America (USA), and Canada undertaken as part of a Churchill Fellowship. Key elements were identified that could contribute to the development of a roadmap for guiding Aboriginal and Torres Strait Islander communities in their aspiration to reclaim child protection decision making, including:

• Strong legislation;
• Aboriginal and Torres Strait Islander-led processes;
• Aboriginal and Torres Strait Islander practice frameworks and practice standards;
• Aboriginal and Torres Strait Islander-led policy;
• Aboriginal and Torres Strait Islander-designed and -delivered programs and services;
• Having people with cultural authority throughout the journey;
• Ensuring that Aboriginal and Torres Strait Islander voices are heard;
• The ability to monitor processes and outcomes through research and evaluation;
• Embedding accountability mechanisms;
• Equitable funding to enable all the above (Butler 2023, p. 40).

This paper will further elucidate each of the elements highlighted above, building on these insights to provide a pathway for change and working alongside Aboriginal and Torres Strait Islander children, families, and communities, which recognises and acknowledges their human and inherent rights to self-determination and puts the power back into their hands.

2. Methodology

This paper is based on the author’s personal reflections from being given the opportunity to observe and engage with First Nations people in Aotearoa, the USA, and Canada who are working towards reclaiming child protection decision making. This methodology and paper have been further influenced by the author’s personal and professional experiences. The author is an Aboriginal woman with family ties to the Yarrabah Aboriginal community, which is situated approximately 60 km from Cairns, Queensland, Australia. The author is a social worker who has spent the majority of their twenty-plus years working in practice, policy, and research alongside Aboriginal and Torres Strait Islander children, families, and their communities. The author has learnt that the importance of listening to and ensuring that the voices of Aboriginal and Torres Strait Islander communities is centre, and therefore this paper aims to do this by privileging the voices of First Nations peoples from Aotearoa, the USA, and Canada.

The author embarked on a Churchill Fellowship between March and May 2023. A Churchill Fellowship offers Australian and New Zealand citizens an opportunity to travel overseas for four to eight weeks to learn more about a topic or issue that they are passionate about. Approximately 100 fellowships are offered each year out of approximately 1000 applications. A Churchill Fellowship is a highly competitive award for people that have significant experience and expertise in their chosen area. The successful fellow needs to demonstrate how their knowledge gained from their experience will contribute to benefit the Australian community.

The key reason why these jurisdictions were chosen was due to being a point of reference as former British colonies who have experienced the impacts of colonisation on their First Nations people, and they provided significant insights into the strategies and approaches that they have engaged in towards reclaiming child protection decision making. The author engaged and learned alongside First Nations child protection practitioners and administrators in these countries as colleagues. Insights gained were considered in the context of the author’s role and experience as a social worker and policy advocate. The article also pays particular attention to the Australian states of Queensland and Victoria. This is due to their current journeys towards the delegation of child protection decision making to Aboriginal and/or Torres Strait Islander community-controlled organisations. Although not directly engaged for this article, the author has drawn upon publicly available reports and papers about the experiences of Queensland and Victoria to date.

By sitting and listening deeply about these experiences and drawing upon the system elements of the Aboriginal and Torres Strait Islander child placement principle, which are legislation, policy, programs, processes, and practice (SNAICC 2017), key elements were identified by the author. The Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) is a key document to reclaiming child protection decision making within Australia as “it recognises that Aboriginal and Torres Strait Islander peoples have the knowledge and experience to make the best decisions concerning their children and recognises the importance of each child staying connected to their family, community, culture and country” (SNAICC 2013, p. 2). Governments across Australia have made a commitment on a national level to work in partnership to realise the full intent of the ATSICPP, and this article aims to demonstrate a way in which the system elements can be drawn upon for community and government to work together to start to progress change.

3. The Key Elements

The following sections provide the elements of the enablers of change for Aboriginal and Torres Strait Islander communities across Australia to reclaim and transform child protection decision making. These elements could provide the basis for the development of the roadmap introduced in the abstract. Federal, state, and territory governments across Australia are asked to reflect on these sections and look at ways, whilst working in genuine partnerships with Aboriginal and Torres Strait Islander peoples, to allow for a true reclaiming and reform of child protection decision making across Australia. These elements are interrelated and therefore must not be seen in isolation to progress the reclaiming of child protection decision making.

3.1. Strong Legislation

Legislation is a key element to enable the reclamation of child protection decision making. As acknowledged by the Queensland government, “legislation can unilaterally create or change rights and obligations of citizens generally or change or affect the operation of general law. Legislation may also be an option chosen to present a policy in a particularly powerful way or to create a state of affairs that can only be further changed or brought to an end by legislation” (Queensland Government Department of Premier and Cabinet 2023, p. 4).

The importance of legislation was furthermore highlighted by Commissioner April Lawrie, who in a recent inquiry in South Australia into the implementation of the Aboriginal and Torres Strait Islander child placement principle stated that “the Inquiry heard from child protection experts, both Aboriginal and non-Aboriginal, about the need for system reform starting with legislation that gets the settings right and puts the Aboriginal child’s best interests at the centre of decision making, inextricably bound to culture as the core protection from harm” (Commissioner for Aboriginal Children & Young People 2024, p. 49).

One reform that could result in a strong legislative requirement to reclaim child protection is to legislate a Federal Child Protection Act within Australia. Although weaknesses were identified in a Federal Legislation perspective by First Nations communities within Canada who have enshrined Bill C-92: An Act respecting First Nations, Inuit and Métis children youth and families (Government of Canada 2019), First Nations peoples advocated for federal legislation to occur, as it allows for consistent protections for families and communities across the nations, where individual states were resistant to change. Further, whether enacted at the federal or state and territory levels, legislation should include at a minimum the following:

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The best interests of the child;

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The recognition of the right to self-determination;

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Ensuring that cultural rights of the child are at the forefront and that there is ongoing connection to kin, community, and culture;

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Embedding the five elements of the Aboriginal and Torres Strait Islander Child Placement Principle to the standard of Active Efforts;

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The transfer of statutory functions and powers to Aboriginal and Torres Strait Islander communities and organisations.

The paramount principle of the best interests of the child appears in a majority of the child protection legislation across Australia. For example, in the Queensland Child Protection Act 1999, section 5A states “The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount” (Queensland Government Queensland Legislation 2024b). The principle of best interest, cultural identity, and connection for an Aboriginal and/or Torres Strait Islander child is more frequently deployed as justification for removal of children, and there is often conflict about what constitutes the best interest of Aboriginal and Torres Strait Islander children due to welfare departments not understanding the importance of connection to kin, community, and culture and the child remaining with family (Arney et al. 2015). This principle must be genuinely embedded to realise the transformation of child protection systems as it highlights the importance of a child’s safety, wellbeing, and interests in decision making.

Legislative reform should not just be undertaken at a national level but across all states and territories in Australia to contribute towards a reclaiming of child protection decision making for Aboriginal and Torres Strait Islander communities.

3.2. Aboriginal and Torres Strait Islander-Led Processes

Research and evidence have highlighted that Aboriginal and Torres Strait Islander people must be at the forefront of change, and this is even more essential to reclaiming child protection decision making. As stated by Cornell and Kalt (2010), “in sum, federal promotion of tribal self-government under formal policies known as “self-determination” is turning out to be, after a century or more of failed efforts to improve the lives of the U.S. indigenous people, the only strategy that has worked. In so doing, the strategy is improving the well-being of its poorest and, arguably, historically most oppressed and disempowered people” (p. 15). SNAICC in 2013 stated that “A true participatory model requires more significant alignment with the right to self-determination, enabling Aboriginal and Torres Strait Islander peoples to exercise control over decisions that affect their lives (p. 53). Insights from similar jurisdictions highlight the need to embed cultural knowledge and governance throughout policy, practice, programs, legislation, and procedures.

Further, change needs to be community-driven, and we must engage in courageous conversations. Cindy Blackstock defines courageous conversations as “the public expression of personal or professional principles and/or values in situations where such expression is likely to be challenged” (Blackstock 2011, p. 36). This requires the ability to stand strong in reclaiming child protection decision making when being challenged as well as ensuring the voices of Aboriginal and Torres Strait Islander leadership across all levels.

The embedding of cultural knowledge and governance has been advocated by a number of First Nations services internationally that outline the importance of drawing upon their traditional child-rearing practices and First Nations governance structures for their reclaiming of child protection structures. This was highlighted during the author’s conversations with Ms. Mary Teegee, Executive Director of the Child and Family Services at Carrier Sekani Family Services (Teegee 2023). Teegee explained that their organization drew upon tradition and cultural governance to develop their programs and services and that this allowed community to genuinely drive the changes required as they felt guided by their ancestors to protect their children and community and to develop a system that responds to the needs of children and families that best suits them.

In Queensland, the rollout of Delegated Authority (which allows the chief executive of the Department of Child Safety in Queensland, Australia to delegate one or more of their powers and functions to Aboriginal and Torres Strait Islander community-controlled organisations) has showcased the importance of being community-driven and honouring time to get the process right. This was highlighted in a recent case study published by the Queensland Aboriginal and Torres Strait Islander Child Protection Peak Centre of Excellence (QATSICPP COE) on the implementation of Delegated Authority in one local area where the organisation outlined that changes within child protection departments fail when processes are rushed and there is not genuine time given to implement the changes to their true intent and build relationships. They found that taking time to build relationship and trust and allowing Aboriginal and Torres Strait Islander people to take the lead, has led to better outcomes (QATSICPP COE 2023).

Courageous conversations are also required to understand the importance of Aboriginal and Torres Strait Islander people having decision-making powers. At the heart of these conversations are the four Touchstones of Hope to enable genuine change and transformation: truth telling in relation to the impacts of child welfare intervention on Aboriginal and Torres Strait Islander peoples, acknowledging that we can learn from the past and embrace new ways of working, restoring to create a better way forward, and relating by acknowledging that Aboriginal and Torres Strait peoples are best positioned to make decisions for their children and young people (Blackstock et al. 2006). Government child welfare departments across Australia must be open and genuinely acknowledge the past and current injustices for Aboriginal and Torres Strait Islander families across Australia.

A common theme identified across the various First Nations communities in Aotearoa, the USA, and Canada, was the importance of First Nations leadership at every level, which was seen as essential to achieving change. Community leaders and advocates in First Nations communities in the USA and Canada were adamant that no change in their jurisdiction would have been achieved if there were not First Nations peoples driving this change. If Australia is to make progress on the transformation of child protection systems and decision making for Aboriginal and Torres Strait Islander peoples, leadership will be required within government departments to respect and acknowledge the cultural knowledge and governance of local Aboriginal and Torres Strait Islander communities by working alongside community leaders, honouring time and engaging in courageous conversations.

3.3. Aboriginal and Torres Strait Islander Practice Framework and Practice Standards

Practice frameworks and practice standards play an important role in communicating casework expectations and setting the tone for interactions between child protection agencies and families and therefore the experiences of families. Connolly and Smith (2010) described practice frameworks as integrating “empirical research, practice theories, ethical principles and experiential knowledge in a compact and convenient format that helps practitioners to use the knowledge and principles to inform their everyday work” (p. 16). This can include explicit or implicit guidance on how legislative provisions or other practice elements might be reflected in the day-to-day work of child protection caseworkers alongside children and families. Practice standards likewise integrate evidence and values to guide practice, often with an explicit focus on expected behaviours and practices that set a baseline for acceptable practice (NSW Government 2020).

Active Efforts represent First Nations principles and expectations for practice, often enshrined in legislation. Active Efforts are defined as “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian Child with his or her family” (U.S. Department of the Interior, Bureau of Indian Affairs n.d., p. 1). Active Efforts are intended to be consistent with the child’s prevailing social and cultural conditions and in partnership with the child’s parents, extended family members, Indian custodians, and tribes (U.S. Department of the Interior, Bureau of Indian Affairs 2016). Aboriginal and Torres Strait Islander leaders within Queensland advocated for Active Efforts to be included in the recent Queensland Child Protection Reform and Other Amendment Act 2022. The Child Protection Act 1999 now states in section 5F (2)(a) “When making a significant decision about an Aboriginal or Torres Strait Islander child, a relevant authority must make active efforts to apply the Aboriginal and Torres Strait Islander child placement principle in relation to the child” (Queensland Government Queensland Legislation 2024a). This legislative mandate clearly communicates the changed practice expectation and provides a judicial mechanism to hold practitioners accountable, although this remains prone to common limitations identified that show compliance with legislated provisions is often not translated or upheld in practice (Davis 2019).

Numerous Aboriginal and Torres Strait Islander practice frameworks have been developed by ACCOs alongside their communities and their staff. A key example of a practice framework that was developed by Aboriginal and Torres Strait Islander leaders and community members was the ATSICPP, which in some states and territories has been either enshrined in legislation or is included in statutory child protection practice frameworks and policy. The five elements of the ATSICPP ask practitioners to reflect and understand the importance of connections to community, country, culture, and family for children and young people who come into contact with the child protection system (SNAICC 2017). The five core elements are as follows: connection, partnership, participation, placement, and prevention (SNAICC 2017). All of these elements should be included in case workers’ decision making when working alongside Aboriginal and Torres Strait Islander children and families. The ATSICPP outlines a practice framework, and the expectations that would demonstrate minimum compliance as highlighted in the SNAICC resource could be described as the practice standards for child protection practitioners across Australia (SNAICC 2017).

A further example is the practice standards that were developed by the Queensland Aboriginal and Torres Strait Islander Child Protection Peak (QATSICPP). These practice standards honour a child’s right to grow up safe, connected to culture, family, and community by working alongside the parents and communities to understand their strengths and to develop plans that are family-owned (QATSICPP 2016). Practice frameworks and standards that are developed by ACCOs alongside community are imperative to reclaiming child protection decision making.

3.4. Aboriginal and Torres Strait Islander-Led Policy

Ritchie highlights that the impact of current policy to realise better outcomes for Aboriginal and Torres Strait Islander peoples is low because their knowledge and insights are excluded from the development and implementation of these policies (Ritchie 2021). Numerous reports across Australia have highlighted the importance of Aboriginal and Torres Strait Islander-led policy development. For example, in their First Nations Women’s Safety Policy 2022 forum outcome report, the Australian Human Rights commission highlighted the importance of ensuring that Aboriginal and Torres Strait Islander women and men are included in the development of policies that impact upon them (Australian Human Rights Commission 2022).

Good First Nations policy gives recognition and value to Aboriginal and Torres Strait Islander views (SNAICC 2019b). To understand what elements make good Aboriginal and Torres Strait Islander policy, the Australian Human Rights Commission (2006) produced an information sheet titled “What makes good Indigenous Policy?” Two key elements that are of note for this article include the fostering and recognising of Aboriginal and Torres Strait Islander leadership and the engagement and participation of Aboriginal and Torres Strait Islander peoples in policymaking (Australian Human Rights Commission 2006).

Unfortunately, at this current time, most child protection policy development, implementation, and evaluation in Australia continue to be dictated by colonial government structures and do not draw upon the voices of those who are most impacted by policies. However, if we are to see a genuine reclaiming of child protection decision making, then policies need to be developed, implemented, and evaluated by Aboriginal and Torres Strait Islander people for Aboriginal and Torres Strait Islander communities.

3.5. Aboriginal and Torres Strait Islander-Designed and -Delivered Programs and Services

Due to their strong connection to the communities in which they serve, ACCOs have a significant advantage in providing services and programs that draw upon the elements of connection to family, community, and culture to overcome trauma that children, families, and communities may be experiencing (Australian Government Productivity Commission 2024). A key component of programs that are designed by ACCOs in Australia for Aboriginal and Torres Strait Islander children and young people are those programs that have cultural connections. As stated by Krakouer et al., “Cultural connection is an important policy objective in Australian child protection and OOHC systems. Not only does it improve wellbeing—and serve as a protective factor—for Aboriginal and Torres Strait Islander children and young people, it also enables the survival of Aboriginal and Torres Strait Islander communities” (Krakouer et al. 2022, p. 11). The reclaiming of child protection decision making allows for ACCOs to either design services that reconnect children and families to kin, community, and culture and/or grow those services that they know are already contributing towards strong social and emotional wellbeing for Aboriginal and Torres Strait Islander communities. However, it must be noted that if ACCOs are not provided with significant resources such as funding and infrastructure, the capacity to design and deliver services will be limited.

3.6. Having People with Cultural Authority Throughout the Journey

To design a system where we can truly reclaim child protection decision making, the voices of those that have cultural authority, such as Aboriginal and Torres Strait Islander Elders, children, and adults, must be privileged.

From the author’s personal and professional experience, leadership within Aboriginal and Torres Strait Islander culture is diverse and is not necessarily dependent on colonial system titles such as Chief Executive Officer or Director General. For example, Elders can provide significant insight into how programs should be delivered due to their own personal experiences of colonial systems and/or the learnings from Elders before them. This was highlighted in a case study by the HALT collective, a group of Departmental Child Safety staff and ACCOs in Queensland, Australia, who formed a partnership to halt the numbers of Aboriginal and Torres Strait Islander families coming into the child protection system in one region in Brisbane, Australia (QATSICPP COE 2022). The Elders, ACCO, and the department came together and mapped a process whereby the ACCO in that area could receive the intake and commence an assessment that engages the family in a culturally safe way to understand the challenges that the family may be facing and to develop a plan alongside the family to mitigate the risks that the department may have identified. This assessment is then shared with the department, and a decision is made together as to whether the case will be closed and allow the ACCO to work alongside the family or to proceed to an ongoing intervention (i.e., child protection orders). The data from the case study shows that of the 277 Aboriginal and Torres Strait Islander children and young people who were presented to the HALT team, only 11 cases (4%) proceeded to ongoing intervention (QATSICPP COE 2022).

This case study highlights that cultural authority must be recognised by statutory child protection systems and non-Indigenous allies so that the knowledge and wisdom of Aboriginal and Torres Strait Islander peoples is at the forefront of transformational change. When this occurs, true change is possible, and families and children have more positive outcomes.

3.7. Ensuring That Aboriginal and Torres Strait Islander Young People’s Voices Are Heard

Aboriginal and Torres Strait Islander children and young people have the right to have their voices heard when decisions are being made that impact upon them. Burns et al. (2024) states that “it is the right of children and young people to have a voice on matters that affect them and for those views to be taken seriously and acted on (p. 11). Furthermore, the article showcases that this is further reinforced by the United Nations Convention of the Rights of the child (Burns et al. 2024). The Queensland Family and Child Commission, which is the statutory authority for the Queensland Government, providing oversight of the child and family support system, has highlighted how important this is to creating changed conditions for children, outlining that “children’s participation in decision making is both an inalienable right as well as a transformative mechanism that empowers children to influence families, communities and institutions…the evidence shows that when children, parents and other family members participate in the decisions that affect their lives, decisions about intervention, placement and care, and orders they are more appropriate and more likely to work” (Queensland Child and Family Commission 2021, p. 20).

There have been numerous frameworks produced across Australia and internationally that highlight ways in which the voices of Aboriginal and Torres Strait Islander children and young people can be included. An international culturally informed example is the First Nations perspectives that have been embedded by VOYCE–Whakarongo Mai (VOYCE). VOYCE is an organisation that has been co-designed to advocate for children with care experiences in Aotearoa (New Zealand). The pillars that guide their work are as follows: Rangatiratanga–Build Leadership; Tuhono–Connect; Whakatairanga–Promote; Whakamana–Advocate; and Whai Pukenga–Help equip (VOYCE n.d.b). VOYCE has incorporated the voices and enables the voices of children and young people in Aotearoa through a number of different mechanisms. This has included but is not limited to creating youth councils across the county, hosting connecting events for children and young people to meet who have care experience and/or are currently in care, helping children and young people in care to have their voices heard through submissions to the New Zealand parliament and the United Nations, and encouraging young people to apply to any vacant positions at VOYCE (VOYCE n.d.a). Similarly, the Solid Voices of Tomorrow resource guide offers an Australian example that promotes the inclusion of young people’s voices (QATSICPP 2022). It has five building blocks to engage and empower young people in actions and decisions that affect them, which include the following: voice, preparation, finding and engaging young people, supporting and resourcing involvement, and taking action (QATSICPP 2022). The publication of this document has led to the establishment of a dedicated Youth Policy officer at QATSICPP. This role leads the development and implementation of the Solid Voices Youth Council within QATSICPP. The role of the Solid Voices Youth Council will be to grow the young leaders of tomorrow and work to ensure that services, policies, and systems work for our children and young people (QATSICPP 2024).

If Aboriginal and Torres Strait Islander children are to genuinely thrive within Australia, then policies, procedures, programs, and services that affect them should include and be informed by their voices. Their participation should not just be an add-on but one that is guiding ways of working from the beginning through evaluation of programs and services. As per article 12 of the United Nations Convention on the Rights of the Child, all children have the right to participation and to be involved in decisions that affect their lives (United Nations n.d.).

3.8. The Ability to Monitor Processes and Outcomes Through Research and Evaluation

To ensure that all parties are working together to implement the reclaiming of child protection decision making, research and evaluation must be included in child protection reforms. Research and evaluation reports must have Aboriginal and Torres Strait Islander peoples leading these as found by Zavala (2013), who outlined that “when Indigenous peoples become the researchers and not merely the researched, the activity of research is transformed. Questions are framed differently, priorities are ranked differently, problems are defined differently, and people participate on different terms” (p. 19).

To help ensure that communities are brought along the journey of implementing the reclaiming of child and family decision making, research and evaluation must be conducted by them, not only to drive self-determining processes, but this will also help to grow future researchers and evaluators and contribute towards research and evaluation that is done by and for First Nations people into the future. A recent example of this was showcased by QATSICPP in their research into domestic and family violence and the impacts on children across the state of Queensland. The report titled “You can’t pour from an empty cup: Strengthening our service and system responses for Aboriginal and Torres Strait Islander children and young people who experience domestic violence” highlighted effective community-driven research methodologies and how they created strong First Nations voices for change (Morgan et al. 2023). This research recruited eight community researchers across the state of Queensland and saw a strong partnership form between Aboriginal and Torres Strait Islander chief investigators, researchers from an Aboriginal and Torres Strait Islander peak body, and non-Indigenous Researchers from the Australian Catholic University. Co-design of the processes and analysis and writing of the report ensured that strong Aboriginal and Torres Strait Islander voices were reflected in the report.

To ensure that Aboriginal and Torres Strait Islander ways of doing, being, and knowing are embedded in this article, the author has drawn upon an Indigenous Terms of Reference (ITR). ITR was pioneered by Aunty Lila Watson to provide a set of protocols to ensure that any Aboriginal and Torres Strait Islander project or decision-making process respects the knowledge, experience, and values of Aboriginal and Torres Strait Islander peoples (Curtin University n.d.). These protocols are important because they are reflective of Aboriginal and Torres Strait Islander values, privilege and affirm Aboriginal cultural ways, highlight diversity in Aboriginal and Torres Strait Islander communities, and provide a framework to engage successfully with Aboriginal and Torres Strait Islander communities (Curtin University n.d.).

3.9. Embedding Accountability Mechanisms

To ensure the true implementation of the transfer of statutory powers and functions, there must be strong accountability mechanisms. Numerous inquiries and reports on child protection systems within Australia have highlighted the importance of the establishment of strong accountability mechanisms (Commissioner for Aboriginal Children & Young People 2024; Davis 2019; SNAICC 2024). These mechanisms have highlighted the need to examine the numbers of Aboriginal and Torres Strait Islander children in out-of-home care, ensuring that they are being afforded the same opportunities as non-Aboriginal and Torres Strait Islander children and that they are growing up strong, safe, and connected to kin, community, and culture.

In the Family is Culture—Final Report: Independent Review into Aboriginal Out-of-Home Care in NSW Report Davis (2019), Megan Davis stated “this Review has found that the accountability mechanisms in the child protection space are weak and require improvement, including transparency, to restore the faith of Aboriginal families in the system and its decision-making. In any professional space where regulation is weak there are informal regulators that play an important role in accountability” (Davis 2019, p. xii). Davis added “What is needed is more scrutiny and accountability of decision-making that is transparent, better record keeping, proper application of risk assessment tools, a deeper understanding of Aboriginal history and culture to enable a more nuanced comprehension of the ACPP (referred to in this article as the ATSICPP) and to enable the confidence of case workers to speak more comfortably with Aboriginal parents, families and community” (Davis 2019, p. xvii).

Internationally, Balaban and King highlight the importance of accountability mechanisms, stating that “Mechanisms are ways to make sure governments do the things they should and are caught when they’re doing things they shouldn’t. You can have a whole spectrum of mechanisms that speak to accountability” (Yellowhead Institute 2023, p. 2). Balaban further highlights that there can be both internal accountability mechanisms, such as a person internally who is a human rights champion, or external accountability, which is an oversight body who is at “arms-length” of the government (Yellowhead Institute 2023). An external accountability mechanism is what Aboriginal and Torres Strait Islander leaders have been calling for in relation to oversight of child protection matters.

Most recently in Australia, the establishment of a dedicated national commissioner for Aboriginal and Torres Strait Islander children and young people has commenced. As highlighted by SNAICC National Voice for our Children (SNAICC 2019a) in their position paper titled ‘Establishment of a national commissioner for Aboriginal and Torres Strait Islander children and young people’, there is a need for significant preconditions for this role for it to give effect to greater accountability for First Nations children and families. This position paper states that the role, to ensure independence and autonomy, should be legislated; be filled by an Aboriginal and/or Torres Strait Islander person who has the appropriate qualifications knowledge and experience; be mandated with clarity of the scope and purpose of the role; be granted appropriate functions and powers to promote systemic change and accountability; and be adequately resourced (SNAICC 2019a). The establishment of a national Aboriginal Commissioner office is to be commended; however, it should be noted that the legislation to create their own powers and functions for the National Aboriginal Commissioner has not occurred, and the role is only interim at present, thereby weakening the ability to drive the real accountability needed to address many of the systemic bias and transgressions of children’s rights inherent in our child protection and justice systems that serve Aboriginal and Torres Strait Islander children and young people.

Aboriginal and Torres Strait Islander child protection peaks also play an important role in ensuring that key reforms are implemented and that they are a voice to the community to advocate for self-determination and voice and choice for Aboriginal and Torres Strait Islander peoples and communities. It is therefore imperative that these are established in each state and territory to ensure that the goal of reclaiming child protection decision making is achieved. SNAICC, the national peak body for Aboriginal and Torres Strait Islander child and family community-controlled organisations, in their recent Family Matters Report SNAICC (2024) continued to advocate for the establishment of peaks in each state and territory across Australia and for these peaks to be adequately resourced. Examples internationally include the National Indian Child Welfare Association in the USA, the First Nations Child and Family Caring Society in Canada, and the Our Children, Our Way Society in British Columbia. They occupy a variety of roles, including supporting capacity building and leading national legal, policy, and practice advocacy.

The role of a peak body and the National Commissioner for Aboriginal and Torres Strait Islander Commissioner can be influential driving change, but these roles must be adequately resourced to be effective in ensuring accountability for reclaiming child protection decision making in Australia.

3.10. Equitable Funding

Accountability also relates to the area of resourcing and funding of ACCOs. King and McCracken from the First Nations Caring Society spoke about the importance of substantive equality in funding and resourcing (Butler 2023). Parity in funding is not just about service delivery, but also policy development, research and evaluation, and practice support and development. There are broad distributed processes that governments invest in to support these systems; however, we often do not see these investments being equitably directed to First Nations approaches.

The 2024 Family Matters Report furthermore outlines the importance of funding being meaningful to ensure that ACCOs function effectively and that this should take into account the service demands for these services (SNAICC 2024, p. 24). Shifting funds from reactionary tertiary costs to investing earlier in families is critical to prevent escalation and negative impacts of these challenges. As outlined by Commissioner Lawrie in South Australia “The result of this imbalance of investment is a dramatic increase in the proportion of Aboriginal children being removed onto long-term orders” (Commissioner for Aboriginal Children & Young People 2024, p. 15). To fully reclaim child protection decision making, there needs to be equity in funding and this needs to include wage parity, resourcing, and brokerage to support families to access what they need to grow up children strong, safe, and connected to kin, community, and culture.

There has already been commitment by governments through Priority Reform 2 of the National Agreement to build the community-controlled sector and to work in partnerships with Aboriginal and Torres Strait Islander communities to achieve this reform (Closing the Gap 2020b). However, the Productivity Commission found in their most recent evaluation that “while some transfer to ACCOs is occurring, efforts are slow (or ad hoc) and do not reflect the systemic changes that are necessary to transform service systems and improve outcomes” (Australian Government Productivity Commission 2024, p. 5). As highlighted by the Productivity Commission, the rate of investment into ACCOs must be done at a faster rate but also in genuine partnership with Aboriginal and Torres Strait Islander people (Australian Government Productivity Commission 2024). This is one way to enable Aboriginal and Torres Strait Islander communities to reclaim child protection decision making, as they will be better resourced to do this efficiently and effectively.

4. Conclusions

Aboriginal and Torres Strait Islander children and young people have the right to grow up safe, strong, and connected to family, community, and culture, and this is something that government-controlled systems and responses have failed to do since colonisation. As this article has highlighted, these calls for change are not new, but action is long overdue. Aboriginal and Torres Strait Islander communities must reclaim child protection decision making to showcase how they can reduce the disproportionate over-representation of Aboriginal and Torres Strait Islander children in out-of-home care and reconnect them to kin, community, and culture.

The vision of the elements outlined in this article are intended to provide ACCOs across Australia the opportunity to work alongside their local communities to reclaim child protection decision making. The elements also serve to provide government child welfare departments key enablers of change required to ensure that they are genuine in their efforts to walk alongside communities and their local ACCOs to allow self-determination of Aboriginal and Torres Strait Islander peoples and to progress the current commitments that they have made to reform child protection systems.

The elements offer a way to address the structural failings of colonial systems that produce and perpetuate the over-representation of our kids in child protection systems, preserving the integrity of our families and safeguarding their futures.