Proposed law changes in the Northern Territory will undermine basic protections for Indigenous children to be able to grow up with their culture and community, the First Nations children's commissioner has said.
The "discriminatory" draft legislative changes, which have been criticised by the NT's child commissioner as not being based on evidence and being pushed through without proper consultation, will make it easier to remove Aboriginal children from their communities by giving the courts and the Department of Children and Families the power to override national guidelines as part of the Aboriginal Child Placement Principle.
The Principle ensures protection for Indigenous children in care. This includes placing them with other family or kin and close to Country. The draft changes to the Care and Protection of Children Act 2007 (NT) (CaPCA) proposes a "special and exceptional circumstance" provision.
Approximately 90 per cent of children in out-of-home care (OOHC) in the NT are Aboriginal. The latest data shows only 23.8 per cent were placed with Aboriginal relatives or kin, meaning 76.2 per were not placed in accordance with the Principle.
Newly appointed acting National Commissioner for Aboriginal and Torres Strait Islander Children and Young People, Lil Gordon, said the proposed law changes will serve to undermine the protection for Indigenous children.
"I echo calls for consultation and engagement with Aboriginal and Torres Strait Islander communities before proceeding with the proposed changes to the Child Protection legislation in the Northern Territory," acting Commissioner Gordon said.
"Ensuring the voices of Aboriginal and Torres Strait Islander children, young people and their families are heard is crucial to protecting their rights, wellbeing and safety."
Last week, draft documents shared with the child protection sector by the Department said the provision would ensure "a court has discretion to not uphold the principle in special/exceptional circumstances…" if it is believed by doing so the child's safety would be adversely impacted.
Arguing the principle was underpinned by 30 years of evidence - including the importance of a child's connection to their family, community, culture, and country - the NT's Office of the Children's Commissioner (OCC) said the proposed amendments "negate the application" of the Principle and were "unwarranted and lack an evidence base".
Criticism of children in child protection in the NT has been an ongoing concern, with a lack of funding surrounding domestic violence, despite the election promise from the CLP, continuing to be criticised.
An inquest in 2021 into the death of a nine-year-old Warlpiri girl by suicide while in the care of the Department of Communities and Families found the department failed to comply with the CaPCA, not considering or assessing other family members who had requested to care for the child.
Another inquest last year into the death of an infant identified failings by the department to provide care for the baby, recommending the CaPCA be reformed to include a provision by department officials known as "active efforts".
National Children's Commissioner, Anne Hollonds, has been outspoken in her criticism of the new CLP government in the NT and their treatment of children, which includes the lowering of the age of criminal responsibility to 10, against the advice of indigenous, legal and health experts.
She said just like the lowering of the age, the new law changes were "not based on evidence, and they risk harming vulnerable children".
"This will not help the broader NT community."
Referencing her recent report, Help way earlier!': How Australia can transform child justice to improve safety and wellbeing, Commissioner Hollonds said evidence shows connection to culture, family and community is a key protective factor for children and helps to lower crime levels.
"Australia needs to strengthen its systems to support prevention and early intervention, including health, education and family support services," she said.
"The Placement Principle must be followed so Aboriginal and Torres Strait Islander children can have their rights protected and thrive."
The NT government has resisted calls to move away from their policies, regularly arguing their electoral mandate compels them to make decisions, even at the behest of marginalised groups of people.
"We will do things differently under this government and we won't apologise for that," NT Attorney-General Marie-Clare Boothby told reporters, arguing her government would no longer accept the "status quo" concerning community safety.
