Child Protection. Freda Briggs
The failure to report the abuse of indigenous children to child protection services or police is due to a lack of support and protection for victims and non-offending relatives, shame and embarrassment; the risk of family backlash and pressures to remain silent; the fear of retribution from perpetrators and their supporters; police inaction; fear, distrust and dislike of police and “the welfare”, blamed in the past for the removal of children referred to as the Stolen Generation. Inaction may also be due to workers being fearful for their own safety given the high levels of alcohol-related violence in these communities. Indigenous workers sometimes have problems taking action against an offender who lives in the same community or, worse, is a member of their own large extended families.
Some abusers are protected because of fear relating to the high number of indigenous deaths and suicides in custody and the fact that victims are often blamed for these deaths. It is possible that in some traditional communities, the initiation of Aboriginal boys is being hijacked around child sexual abuse so that, especially for children, it would be difficult and confusing to understand what is cultural and what is abuse113. In addition, there are often practical barriers to reporting. Social workers are usually based in towns such as Alice Springs, Kununurra, Broome and Coober Pedy … far from the remote communities they are expected to serve. Reporting and prosecutions then involve travelling great distances, possibly to interview people who speak a different language.
Queensland elders attending a workshop for indigenous women told the author that parents did not report sex offences because police didn’t investigate them. Police replied that allegations were usually withdrawn before cases reached trial making investigations “a waste of valuable time”. The elders pointed out that it could take two years for a case to reach trial by which time offenders and their mates had beaten up victims and their mothers, smashed their homes and, in some cases, burnt them and their cars. “Child sex abuse cases need to be “fast-tracked” in the legal system”, they said “and victims need to be protected”. “Not possible” said senior police in two states: “Either there isn’t the manpower to speed up the investigation or there isn’t a court or a magistrate available”.
In 2008, a Kimberley victim was under attack from her abuser’s supporters and had to be flown out for her own safety. For more than ten years, indigenous women have demonstrated the need for safe-houses to protect abused children and their non-offending family members, not necessarily in the towns in which they live if safety cannot be guaranteed.
Given the alien environment of a criminal court and the way in which child victims are cross-examined, it is not surprising that there are comparatively few successful prosecutions of child sex offenders who commit crimes against indigenous children.
Adult criminal courts are ill-equipped for handling shy, unsophisticated children who, despite having English as a second language, are expected to cope with “rigorous” cross-examination by barristers.
Several government commissioned reports have highlighted the problems. West Australian Magistrate Sue Gordon was very clear about the size and seriousness of child abuse when she wrote in 2002 that “the statistics paint a frightening picture of what could only be termed an “epidemic” of family violence and child abuse in Aboriginal communities”114. Indigenous academic Professor Marcia Langton (2007) agreed, indicating that while the “dreadful plagues” of domestic violence and sexual assault are constantly reported in the media, no action results. In an indictment of policy inefficacies Langton said that Aboriginal women have been screaming for police help for thirty years115.
The debate about indigenous affairs reached a new crescendo in 2007-8, fuelled by the uncensored exposé of the extent of child abuse in remote communities and the inaction of the Northern Territory Government. More than a century of policy experimentation climaxed with the Commonwealth Government sending the army and a police taskforce into the Northern Territory, the only jurisdiction where it had powers to intervene. It legislated more than 500 pages of emergency measures that subverted the self-government of the Territory in the most extraordinary federal intervention in Australian history. The intervention was rushed. Queensland Police took the 1970s American Protective Behaviours Programme to remote indigenous children despite published research findings (from 1990 onwards) that it was seriously flawed as a tool for stopping or preventing sexual abuse.
A major concern of teachers in remote communities has been the lack of treatment programmes for very young children who sniff petrol and other adhesives, leading to brain damage, loss of body functions and control. There is a strong suspicion that substance abuse by some children is a response to sexual abuse – a way of self-medicating their pain and suffering.
Where children engage in substance abuse, they increase their risk of sexual violation. Effects of petrol sniffing on users may include promiscuous behaviour and little awareness of anything that is going on around them beyond maintaining the petrol supply which is usually stolen. There is also evidence that children engage in prostitution to buy petrol and drugs116.
Australia’s Obligations: The UN Convention on the Rights of the Child (UNCROC)
On 20th November 1989, the United Nations General Assembly adopted the UN Convention on the Rights of the Child. In Australia and Canada where there are both state and federal governments, the states are expected to bring their national legislation into line with Convention provisions. Ratification by the national government makes states publicly and internationally accountable for their actions. By signing the Convention, countries agree that “The child shall be protected against all form of neglect, cruelty and exploitation. He shall not be the subject of traffic in any form” (Principle 9). Furthermore, under Article 19 it was agreed that*:
State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse or negligent treatment, maltreatment or exploitation including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has the care of the child
Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for the identification, reporting, referral, investigation, treatment and foIlow-up of instances of child maltreatment … and, as appropriate, for judicial involvement *italics inserted by the author
In Article 1, the “child” is defined as someone who has not yet had their 18th birthday. The Preamble refers to the need for protection for the child before and after birth. In a 2003 case in the High Court of New Zealand (Ref 1NZLR 115) there was a successful application by child protection services to have an unborn child placed under the guardianship of the High Court to prevent the mother from having the birth filmed for pornographic purposes. It was argued successfully that this would be harmful to the child in the long term. The Court found that New Zealand, in adopting the Convention, had recognised the rights of the child before and during birth and the judge declared that the term “child” includes unborn babies.
Article 34 requires that children shall be protected from all forms of sexual exploitation and sexual abuse. Governments shall take appropriate measures to prevent:
1 the inducement or coercion of a child to engage in any sexual activity
2 the exploitative use of children in prostitution or other unlawful sexual practices
3 the exploitative use of children in pornographic performances and materials
Article 39 states that governments shall take all appropriate measures to promote physical and psychological recovery and social reintegration of child victims of any form of neglect, exploitation, abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment. In other words, governments must provide treatment for victims and counselling for their families.
Article 3 is relevant to statutory child protection authorities, legislators/politicians and Non-Government Organisations (NGOs) providing services for children who are “care and protection” cases: