Indigenous Law Bulletin
By Ruth Bohill and Greg Douglas.
The impetus for the Children (Protection & Parental Responsibility) Act 1997 (NSW) (‘the Act’) is supposedly to prevent and reduce juvenile crime by making families responsible for the actions of their children. Controversial from its inception, a recent report by the NSW Aboriginal Justice Advisory Council concerning the implementation and effect of the Act has called for its abolition.
In this two-part article, the authors argue that the Act’s requirements for consultation with young people and indigenous communities is crucial both to legitimating the Act as a form of social control and to empowering community members in exercising some control over the implementation of the Act. On the one hand, consultation may be used to coerce consent to and sanction the perpetuation of assimilationist policies of child removal. On the other hand, effective consultation may produce positive social change. Which outcome prevails will depend on the ideas and practices of consultation, decision-making and proper social relations adopted by governmental agencies.
A variety of aims are implicit in the structure of the Act. These include, but are not limited to: the prevention and reduction of juvenile crime; the protection of citizens from violence and property offences; addressing the role of family dysfunction and neglectful parenting in contributing to juvenile crime; and the protection of children who are ‘at risk’.
In addition, the Act has three explicit objectives. The first is the enforcement of ‘parental responsibility’ under Part 2 of the Act. Parental responsibility is not defined in the Act but one or both parents may be convicted for offences where they have ‘by wilful default, contributed directly or in a material respect to the commission of an offence of which the[ir] child has been found guilty.’
The second object, contained in Part 3 of the Act, is to affirm discretionary police powers (eg ‘move on’ powers) relating to public order offences. Most of these powers are already provided for under other legislation, but the Act creates a new regime of police powers to remove young people under the age of sixteen from ‘public places’ within ‘an operational area’ (see below), who are either ‘at risk’ of committing an offence or likely to be exposed to physical or psychological harm.
The third aim, under Part 4 of the Act, is the creation of local crime prevention plans (‘LCPPs’). The role of consultation in the creation of LCPPs poses questions about the supposed aims of Parts 2 and 3 of the Act.
LCPPs are established on the initiative of local government councils under Part 4 of the Act. Their object is to provide a framework for working ‘towards a safer environment by fostering community (sic) involvement in the development of local crime prevention plans’. To this end, the content of a LCPP may relate to ‘Aboriginal community development’, ‘non-English speaking background community development’, ‘consultation’ and any matter specified in guidelines issued by the Attorney General.
However, community consultation is not a mandatory requirement at every stage of the process of developing a LCPP. When preparing a draft LCPP, a council may publicise its intention and seek and consider submissions from members of the community. Once a draft LCPP is completed, the council must provide public notice of the draft and publicly exhibit the draft plan for not less than 28 days. During this period of public exhibition the council must allow for a period of not less than 42 days for public submissions. ‘After considering all submissions’ the council may decide to amend the draft plan or adopt it without amendment. If amended, it may publicly exhibit the amended plan or adopt it without public exhibition. Finally, only after adopting a LCPP, is the council required to publish the plan in a newspaper circulating generally in the area.
Local councils must engage in adequate consultation with young people and ‘the Aboriginal community’ if they wish to apply to the Attorney General to have a LCPP approved as a ‘safer community compact’ (SCC). Converting a LCPP into a SCC attracts financial assistance. Financial assistance may cover expenses incurred in the preparation of a SCC and any expenses incurred in developing or monitoring a SCC.
A local government councils’ discretion in deciding whether, when and how to inform communities and engage in community consultation in the preparation and amendment of a LCPP is highly problematic, given that the content of a LCPP will more than likely cover matters relevant to indigenous communities, such as the use and surveillance of public space, the incidence of police contact with indigenous communities and the use and provision of resources to support youth. Once a parent is found guilty of willful default in relation to their parental responsibilities of care and guardianship, the chance of removal of the child to whom they owe those responsibilities by other government agencies increases. Consultation is therefore an essential process aimed at engaging communities in addressing the very issues that may result in anti-social behaviour and the potential prosecution of parents.
The Attorney General provides three Guides to assist councils in the development of a LCPP, the application for a SCC and the implementation of operational areas under the Act. These Guides identify mechanisms for consultation, including who to consult (including Aboriginal Land Councils and other Aboriginal community organizations, Aboriginal elders, focus groups and youth councils), and how to consult (for example, articles in local newspapers and community meetings).
Local councils may provide for representation of indigenous community members on steering committees designed to oversee the creation and implementation of the Act. However, these community members may or may not be representative of their communities and may or may not possess the relevant authority to voice their communities’ concerns. In addition, reliance on written forms of consultation assumes that all members of communities will possess the literacy skills to inform themselves of the council’s intent to develop a LCPP and to respond to this intention. Given the statistics about indigenous literacy, this is not a fair assumption.
If an individual misses or is unable to participate in any or all of these strategies for consultation, then by their silence they agree to what ever it is that is decided. This seriously encroaches upon the fundamental human, civil and social rights of an ‘excluded’ community member.
A disturbing element of the Act is the reinforcement, in terms of language and structure, of previous Aboriginal protection legislation. The Supply of Liquor to Aborigines Act 1854 (NSW) and the Vagrancy Act 1871 (NSW) allowed both police and the Aborigines Protection Board to monitor and intervene in indigenous peoples’ lives. The consequences under this kind of protection legislation of a child being ‘neglected’ bear stark similarity to the possible consequences (and additional penalties) for a child whose guardians have breached their ‘parental responsibilities’ under the Act, (ie intervention in family life and even removal of children). One of the main ambiguities within the Act is what ‘offence’ a parent is deemed to commit as a consequence of the child’s activities. It is unclear whether a parent - or parents - will be convicted of the same or a similar offence as their child if they have, by defaulting on their parental responsibilities, ‘contributed directly ... to the commission of an offence’.
In addition, the relationship between local councils, the Attorney General’s Department, the police and the Department of Community Services supported by the Act raises questions about the continued involvement of these government institutions in the empowerment of indigenous communities. If a LCPP is created, a local council may receive financial assistance from the Attorney General’s Department. If the LCPP becomes a safer community compact, police powers in relation to youth are increased. If a child’s activities bring them under the scope of these powers, the Department of Community Services may become involved in their family’s life. Without effective consultation and participation in the reduction of issues related to anti-social behaviour, the utilization of resources for youth and the creation of effective mechanisms for change, past injustices may be repeated by the very same institutions responsible for the stolen generation.
It is arguable that the aim of a LCPP or SCC should be to make Parts 2 and 3 of the Act inoperative. That is, to inform communities about the LCPP and through consultation encourage them to take ‘responsibility’ for juvenile crime. In this context, there are limited reasons to rely on court-enforced orders on matters relating to juveniles in public places. LCPPs or SCCs could provide an effective mechanism for social change by empowering parents, families and communities. Yet engagement in this process is dependent on the consultation mechanisms established. The requirements and mechanisms recommended, under the Act may mean that the children, parents and families most likely to be affected by the Act may also be the least informed about participation and involvement in the consultation processes. If mechanisms for consultation do not include those who are most likely to be affected by the Act, then their effectiveness is called into question.
In determining the effectiveness of the Act, the criteria of information provision and community consultation about the implementation of plans developed under the Act are easily confused. The first is often a passive exercise, which might include information sessions about the operation of the Act in that area via community meetings, letter drops, and school based education programs. In comparison, community consultation requires active participation in the function, processes and initiatives for change regarding the implementation of the Act. There is no question that in many circumstances, communities are ‘informed’ about the operation of the Act.
An initial evaluation of the Act undertaken by the New South Wales Aboriginal Justice Advisory Committee (AJAC), found that a pilot test of the Act in Orange was seen as ‘working’ while in Gosford there was no apparent community support for it. Further, the AJAC report also found a mixed reaction within the communities, in particular in Moree. The AJAC report indicates that establishing youth and/or community support initiatives in support of an operational area has been more effective in addressing anti-social behaviour than extended police powers permitting the removal of young people at risk from public places. However, the AJAC report shows that a lack of effective consultation impairs community participation in and satisfaction with LCPPs. The quality of consultation is an issue that is addressed in Part II of this article.
Ruth Bohill is a Western womyn who is currently employed as an Associate Lecturer with the Faculty of Law, Griffith University. A graduate of ANU with an LLB, she is exploring the option of PhD candidature of which part of her research work will include overseas travel to engage in activist work.
Greg Douglas is a descendant of the Gumbannggirr and Thunghutti Nations and is currently employed as an Associate Lecturer by the Gummurrii Centre at Griffith University. A graduate of Newcastle University with a Bachelor of Education, he is currently exploring a Master of Philosophy.
 New South Wales, Evaluation of the Children (Parental Responsibility) Act 1994 (NSW), Report from the Evaluation Committee (February 1997) 8.
 Aboriginal Justice Advisory Committee, A Fraction More Power: Evaluation of the Impact of the Children (Protection & Parental Responsibility) Act 1997 (NSW) on Aboriginal People in Moree & Ballina, Research & Evaluation Series Number 1 (1999) at <www.lawlink.nsw.gov.au/ajac.nsf/pages/parental responsibility>.
 The term ‘communities’ pays respect to the diversity and dynamic nature of indigenous communities across Australia.
 New South Wales, above n 1, 18.
 Rather, guiding principles are established which concentrate on the ‘best interests of the child’ (s 6). ‘Parental responsibility’ seems to involve the attendance of parents at court proceedings (s 7), the provision of undertakings by parents (s 9) and potentially court ordered family counselling (s 10), in addition to contributing to children’s offences (s 11).
 Section 11.
 See, eg the Children (Criminal Proceedings) Act 1987 (NSW), the Bail Act 1979 (NSW), the Children (Care and Protection) Act 1987 (NSW), the Crimes Act 1900 (NSW), the Intoxicated Persons Act 1979 (NSW), the Summary Offences Act 1988 (NSW), the Drug Misuse and Trafficking Act 1985 (NSW) and the Mental Health Act 1990 (NSW).
 Section 18 of the Act describes a ‘public place’ as (a) a place (whether or not covered by water), or (b) a part of premises, that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not it is ordinarily so open or used and whether or not the public to whom it is open consists of only a limited class of person. An ‘operational area’ is an area declared to be an operational area under s 14 of the Act. This effectively involves a local council requesting the Attorney General to declare an area to be an operational area. In doing so the Attorney General is to have regard to a number of considerations such as whether the council has adequately informed and consulted with young people and the Aboriginal community (s 14(4)(a)).
 Section 19.
 Section 30.
 Sections 32 and 33 provide for guidelines to be created by the Attorney General.
 Section 34.
 Section 35.
 Section 38 (1)(a).
 Section 39(1).
 Section 40(2). AJAC, above n 2, recommends severing this link between the declaration of operational areas and provision of funding to local councils.
 Section 40 (4).
 Section 9.
 Attorney General’s Department of New South Wales, How to Develop Local Crime Prevention Plans (Guide 1); Applying for Safer Community Compacts under the Children (Parental Responsibility) Act 1997 (NSW) (Guide 2) and Applying for Operational Areas Under the Children (Parental Responsibility) Act 1997 (NSW) (Guide 3).
 Ibid, Guide 1, 16.
 Ibid, Guide 2, 15.
 Ibid, Guide 3, 11.
 See, eg Art 27, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368, (entered into force 23 March 1976).
 Section 11.
 See the Children (Care and Protection) Act 1987 (NSW) for the relevant role undertaken by the DOCS.
 See Aboriginal Justice Advisory Council, above n 2.
 See Aboriginal Justice Advisory Council, above n 2.
 See Aboriginal Justice Advisory Council, above n 2 and Hayes, Shipway & Taperell, ‘The Children (Protection and Parental Responsibility) Act 1997: (NSW) Implementation Issues’, (Paper presented at the Children and Crime: Victims and Offenders Conference, Brisbane, 1999) 10.