2025-11-07
The federal government espouses to support Closing the Gap while maintaining policies that keep the gap
By Dr Hannah McGlade, a Kurin Minang human rights expert, law academic and member of the United Nations Permanent Forum on Indigenous Issues
Traditionally federal Labor governments have offered more on Indigenous policy than the Coalition. There is a dawning realisation among many of us that these days have passed.
Although we have always known constitutionally the Commonwealth can assume responsibility for the rights of the child, the release of legal opinion by two senior barristers by the National Aboriginal Torres Strait Islander Legal Service is a helpful elucidation of this fact.
The federal constitution allows implementation of United Nations treaties under the external affairs power and where there is inconsistency between federal and state law the federal law prevails.
The constitutional law opinion from the National Aboriginal and Torres Strait Islander Legal Service (NATSILS) states the Commonwealth can pass a law to protect the rights of children consistently with the UN Convention on the Rights of the Child. For example, they can pass a law that the minimum age of criminal responsibility is 14 years, in line with international best practice and the jurisprudence of the UN Committee overseeing the Convention.
The Prime Minister and the Minister for Indigenous Australians maintain that responsibility for the shocking situation impacting Aboriginal children in justice systems lies with states and territories. They know the laws being passed violate UN laws and put Aboriginal children's lives at risk.
There is no question about legal authority, there never was, the question is the government's political will: there is none. Labor is relying on the defeated Voice referendum as a mandate to do nothing.
As I wrote many years ago in my Stanner Award-winning book 'Our Greatest Challenge, Aboriginal children and human rights', power relations formed in the violence of colonisation see Aboriginal children as powerless and without rights.
Today, Aboriginal children are increasingly at risk of removal and incarceration notwithstanding the government's promise of Closing the Gap. I refer to it as a promise because the closing the gap agreement is non-binding.
This situation has never been addressed, with the Uluru Statement from the Heart's call for Voice rejected at referendum following an appalling campaign marked by lies and misinformation and funded by billionaires.
Aboriginal children, ripped from their mothers' arms as part of an assimilationist history, remain an easy target for state governments wanting to be elected on 'tough on crime' campaigns, fuelling laws that violate binding UN conventions on the rights of the child and the prohibition of race discrimination.
These laws are before the UN Committee on the Elimination of Race Discrimination under the Early Warning Urgent Action procedure, in a complaint written by me and Professor Megan Davis and calling on the Committee to find Australia is in breach of its international legal obligations. The constitutional opinion affirms the federal government has the power to address this but chooses not to.
While the ALP has supported Aboriginal politicians into federal parliament, none of these politicians are showing the leadership needed in the current crisis. What is the use of being an Aboriginal politician in a likely three-term government, with a substantial majority, if you cannot stand up for Aboriginal children? In South Australia, the Attorney General Kym Maher has even passed new laws which will see the escalation of Aboriginal children behind bars.
Recently we saw Aboriginal leaders acting with the Australian Human Rights Commission issuing a statement on the anniversary of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Former politicians of both sides and including Senator Pat Dodson and Minister Ken Wyatt along with Katie Kiss and former Aboriginal and Torres Strait Islander Social Justice Commissioners, called for recognition of Indigenous rights and the implementation of the Senate inquiry into UNDRIP, which recommended a national action plan to implement the Declaration in Australia. The Senate Inquiry remains neglected by government ‒ who claim to respect international human rights law but fail to act while Aboriginal children's human rights are wilfully violated.
The Coalition of Peaks working closely in partnership with the federal government has not demanded the change urgently needed for children and youth. The lack of an independent Voice to Parliament has led to a situation of some Indigenous representatives unable to exercise the independence, leadership and advocacy required.
Having been a member of the UN Permanent Forum for Indigenous Issues for six years I have repeatedly highlighted the issue of violence and discrimination Aboriginal children experience in the justice system, and how dangerous this is, and calling for Australia to ratify the Optional Protocol to the Convention on the Rights of the Child which allows for individual children to make complaints.
If Australia removes its reservation to Article 37 ‒ an article that prohibits children in adult prison facilities – we could see real change. Instead, they espouse to support Closing the Gap while maintaining policies that keep the gap.
The Forum repeatedly recognised discrimination and violence to children and named Australia in its reports – but this is ignored by the federal government. Meanwhile they appoint a First Nations Ambassador to promote its policies of Aboriginal economic empowerment at the UN.
This shows a major failing of Minister Wong to understand that Aboriginal people, women especially, will always stand with and protect our children ‒ who mean more to us than any economic policies ever could.
Many years after the acclaimed, late Aboriginal artist Juluma Rover Thomas painted the 'Crossroads' in his work, I wonder was he painting his Country ‒ or a picture of this country, and nation, and the place that we find ourselves in today?
Header photo: Crossroads (1997), Rover Thomas. Image: Art Gallery NSW.
This article was first published in the National Indigenous Times, September 30, 2025
[Opinions expressed are those of the author and not official policy of Greens WA]