The Australian Law Reform Commission report Pathways to Justice has recommended that a national inquiry be held into the removal of Aboriginal and Torres Strait Islander children, acknowledging the “recognised links between out-of-home care, juvenile justice and adult incarceration.” The overrepresentation of Aboriginal and Torres Strait Islander peoples in detention is not news, but for an independent Commission to explicitly recommend that an inquiry be held into “Aboriginal and Torres Strait Islander children in child protection, and the state and territory laws that see such children placed into out-of-home care” is worth more than fleeting consideration.
Among the concerns highlighted in the report are the high rates of incarceration of Aboriginal and Torres Strait Islander women, up to 80% of whom are mothers. The removal of primary caregivers has a significant impact on families and communities, contributing to the cycle of disadvantage where Indigenous children are placed in out of home care – at rates 10 times that of non-Indigenous children – which drastically and unfairly raises the likelihood of these children becoming involved with the youth justice system.
The reaction to the report and its recommendations has been vocal, with some criticising the implication that for substantive, not merely formal, equality and effective reform, the law might need to treat Aboriginal and Torres Strait Islander peoples differently. It is worth remembering, however, for the sentencing of all offenders regardless of race, taking into consideration cultural and personal backgrounds reveals both the fault lines and the fertile grounds within our communities.
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