LEGAL and child protection systems are failing to protect Aboriginal children from rape and sexual abuse and are adding to their psychological suffering, according to a controversial book to be launched today.
In Our Greatest Challenge, human rights lawyer Hannah McGlade calls for a radical new approach that stops exonerating Aboriginal men and empowers communities to discipline perpetrators.
Dr McGlade argues that when the law is used as the primary response to child sexual assault, victims are left traumatised and further harmed by the legal process and discrimination in the court system.
She claims that as a Noongar woman speaking against child sexual assault, she has experienced intimidation and abuse,
as well as "alienation and marginalisation".
Children's rights should be made a formal Close the Gap target and there should be a national deputy commissioner for Aboriginal children, she says.
Dr McGlade says child sexual assault is not readily characterised as a human rights violation because Aboriginal human rights discussion has been set by Aboriginal men and works "to men's advantage".
"Child sexual assault is largely perpetrated by men upon predominantly girl children, thereby raising the uncomfortable issue of Aboriginal men's participation in human rights abuses against Aboriginal children. The biased nature of Aboriginal human rights discourse has unfortunately negated recognition of child sexual assault as a serious human rights matter," she writes.
She argues that in the Australian context, a bias towards Aboriginal male offenders has been evident and often this has "rendered invisible the harms suffered by victims, predominantly women and children".
"It has now been recognised that major justice inquiries such as the Royal Commission into Aboriginal Deaths in Custody failed to acknowledge the high rate of homicide of Aboriginal women, which far outnumbered the deaths (predominantly of men) that occurred in custody."
In many prosecutions for child sex offences, "the response of the state Aboriginal legal service was to publicly attack the prosecutions and aggressively defend perpetrators by using technical legal arguments to secure a number of acquittals".
She says criminal justice responses should be developed that are more inclusive of women and children, and cites the Community Holistic Circle Healing program of Hollow Water, Canada.
The CHCH model entails the development of a "healing contract" that offenders must agree to be bound by, involving healing circles held with the victims and perpetrators and their families; the sentencing circle in which victims, offenders, families and the wider community are brought together, and in which a non-custodial sentence is imposed on the offender; and a final "cleansing" ceremony held to acknowledge the offender's participation within the program and reintegration back into the community.
"Hollow Water's CHCH has great possibilities that should be explored in the Australian context," she writes, adding that while a non-incarceration model may be controversial, "it should be recognised that Australian courts have released offenders on suspended sentence without any supervision, treatment or rehabilitation measures".
She argues children must be involved in the process rather than ignored in consultations.
Dr McGlade says attacks on the NT Emergency Response have also been led by male-dominated land councils.
"Their position has been supported by the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, an office occupied exclusively by Aboriginal male appointees since its inception in 1992.
"Opposition to the NTER has at times entailed denial of . . . violence against women and children and child sexual assault."