Barriers Experienced by Aboriginal and Torres Strait Islander Children and Families Accessing Legal Supports Scoping Study
Download the Scoping Study [PDF]
Find out more about the Scoping Study
Executive Summary
Aboriginal and Torres Strait Islander peoples have been growing up their children strong in culture and community for millennia. However, the impact of colonisation continues to have a damaging impact on Aboriginal and Torres Strait Islander peoples, including the over representation of children in child protection systems nationally, with the number of Aboriginal and Torres Strait Islander children affected by Australia’s child protection systems increasing and rates of over-representation at an all-time high. This over-representation is alarming and highlights ongoing human rights challenges in Australia.
Over-representation of Aboriginal and Torres Strait Islander children in child protection systems is driven by the current and ongoing impacts of colonisation and racism, including intergenerational trauma experienced by members of the Stolen Generations and their descendants. Colonisation and racism have created systems of violence that continue to harm Aboriginal and Torres Strait Islander children, families and communities. These systems, including child protection and criminal justice, disproportionately impact and target Aboriginal and Torres Strait Islander peoples. The distinct disparities experienced by Aboriginal and Torres Strait Islander peoples in employment, education, housing, health and justice outcomes are embedded within these systems, with evidence showing these socio-economic outcomes overwhelmingly contribute to Aboriginal and Torres Strait Islander families being more likely to have contact with child protection and justice systems.
In July 2020, the Australian, state and territory governments signed the National Agreement on Closing the Gap (National Agreement), which includes 17 socio-economic outcome areas and associated targets for improving life outcomes for Aboriginal and Torres Strait Islander peoples. Target 12 is to reduce the rate of over-representation of Aboriginal and Torres Strait Islander children in out-of-home care by 45% by 2031. The National Agreement also includes four Priority Reform Areas designed to shift the way governments operate to drive meaningful change for Aboriginal and Torres Strait Islander peoples.
The 2024 Closing the Gap Dashboard and Annual Data Compilation Report shows that the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care is worsening, with the national rate rising from 54.2 per 1,000 Aboriginal and Torres Strait Islander children in 2019 to 57.2 per 1,000 in 2023. For non-Indigenous children, the rate of children in care per 1,000 children was just 4.7 in 2023. Modelling undertaken for the Family Matters Report 2023 estimated that, in the absence of wholesale reforms to child protection policy and practice, the rate of Aboriginal and Torres Strait Islander children in care would reach 62.3 per 1,000 children in 2031. This would represent a 14.9% increase from the 2019 rate, backsliding further against Target 12. The Productivity Commission’s first review of progress against the National Agreement added context to most governments’ poor performance against Target 12 and various other targets, finding that governments across Australia are not meeting their commitments under the Priority Reforms and questioning whether they fully understand the scale of systemic change required.
Achieving the Closing the Gap targets requires significant investment in early intervention and preventative child and family services, along with recognition of the right of self-determination in the development, funding and delivery of culturally appropriate legal services for Aboriginal and Torres Strait Islander peoples. It also requires governments to significantly transform the way they work in line with the Priority Reforms outlined in the National Agreement. Through Safe and Supported: Aboriginal and Torres Strait Islander First Action Plan 2023–2026 (First Action Plan), Safe and Supported: the National Framework for Protecting Australia’s Children 2021–2031 (Safe and Supported) recognises that culturally safe and appropriate legal representation is critical in supporting Aboriginal and Torres Strait Islander children, young people and families at risk of entering—or already in contact with—child protection systems.
Unmet legal needs have a profound and devastating impact on the lives of Aboriginal and Torres Strait Islander children and families. Most significantly, gaps in legal representation and support contribute to the ongoing removal of Aboriginal and Torres Strait Islander children, severing their connection to community, language, culture, Country and kin. This not only devastates families but also perpetuates cycles of intergenerational trauma, inflicting deep and lasting harm across generations.
Under Action 6 of the First Action Plan, governments have committed to improving the availability and quality of legal supports for Aboriginal and Torres Strait Islander children and families in contact with child protection systems. This Scoping Study delivers on Activity A of this action by examining the interface between child protection systems, relevant legal services and youth justice systems to assess the barriers experienced by Aboriginal and Torres Strait Islander children and families in accessing legal supports. Efforts have also been made to map the issues faced by Aboriginal and Torres Strait Islander children and families at risk of—or already in—contact with child protection systems across each jurisdiction and, to the extent possible based on available data, to quantify levels of access to justice and unmet legal need.
This Scoping Study is a key initiative intended to contribute to improved outcomes for Aboriginal and Torres Strait Islander children and families. With a focus on the rights and needs of Aboriginal and Torres Strait Islander children, it aims to identify opportunities and options to address systemic discrimination and barriers, improve legal and related supports, and reduce the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care. The Scoping Study used a mixed methods design to understand the legal needs of Aboriginal and Torres Strait Islander children and families when they come into contact with child protection, barriers and gaps in accessing legal support, and current models and services that improve access and meet legal needs. This involved a combination of qualitative and quantitative data gathered through desktop research, online forums and surveys targeted at stakeholders working with Aboriginal and Torres Strait Islander children and families who come into contact with child protection systems, as well as data from government agencies. An Expert Advisory Group provided guidance, advice and expertise by overseeing the data collection methods, findings and recommendations developed in this report.
The Study found that current funding arrangements restrict the accessibility of legal supports for Aboriginal and Torres Strait Islander children, young people and families, including the delivery of child and youth-focused services that are aligned with community needs. These services are primarily delivered through Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Services (FVPLS); however, organisation-specific funding decisions for legal supports should be led by communities and invested into the services, organisations and supports that local community members determine are most appropriate to meet their needs. The Study also emphasised the lack of cultural responsiveness in mainstream legal and court systems, and the resulting need for targeted action to strengthen cultural capability at all points within these systems. This includes ensuring that cultural capability is built into qualification pathways and professional development opportunities. This report highlights some promising examples of specialist courts as having established systems, practices and approaches that are more culturally responsive for Aboriginal and Torres Strait Islander children and families.
Growing the Aboriginal and Torres Strait Islander legal—and related—workforce was emphasised as being critical to help meet the legal support needs of Aboriginal and Torres Strait Islander children and families. The Study also explored the role that non-legal Aboriginal and Torres Strait Islander community-controlled organisations (ACCOs) play in facilitating access to legal supports and legal advocacy, as well as providing prevention and early intervention services that both support Aboriginal and Torres Strait Islander families to avoid contact with tertiary child protection systems and facilitate early access to the supports they need. Increased funding is required for these services to operate effectively. The Study specifically considered the needs of Aboriginal and Torres Strait Islander children throughout all stages of research and engagement, and clearly identified that children require consistent, high-quality and culturally responsive legal representation at all stages of proceedings. Facilitating this requires investment in legal representation, as well as in policy and regulatory responses, such as the development of National Minimum Standards for children’s legal representatives.
The Study also revealed that most jurisdictions cannot easily collect or analyse data related to legal supports provided to Aboriginal and Torres Strait Islander children and families, making it challenging to quantify, understand and act to address unmet need. To enable governments and the sector to deliver the changes required to ensure Aboriginal and Torres Strait Islander children and families are able to access the legal supports they need, this report contains 13 recommendations, along with sub-actions that bring these recommendations to life. This report calls on government agencies, particularly jurisdictional child protection and justice departments, to take action through joined-up responses that are led by Aboriginal and Torres Strait Islander leaders and communities.