Yoorrook for Justice - Understanding the report

Image: The Yoorrook Justice Commission. Source: Instagram.

Yoorrook for Justice - The Report

Yoorrook for Justice is the second interim report following the initial interim report Yoorrook with Purpose in July 2022, the final report will be released in June 2025 when Yoorrook concludes. The Yoorrook for Justice report is the result of the commission’s year-long inquiry into Victoria’s child protection and criminal justice systems. The report explores extensive systemic injustice, racism, discriminatory laws, and policy failures that have caused harm to mob both in the past and today.

The report is structured into seven parts:

• A. Letter of Transmission, Chairperson’s foreword, brief introduction about methodology and terminology.
• B. Executive Summary, recommendations, key facts.
• C. Examines the historical foundations of the child protection and criminal justice systems. It also discusses matters for Treaty in relation to child protection and criminal justice as well as examining consistent themes between the two systems.
• D. Examines critical issues in the child protection system. 
• E. Examines critical issues in the criminal justice system.
• F. Considers other issues that have arisen during this stage of Yoorrook's work.
• G. Appendices to the report, including list of witnesses and a glossary as well as further information relating to the child protection and criminal justice systems.

Why the child protection and criminal justice systems?

The First People’s Assembly of Victoria called on Yoorrook to investigate the child protection and criminal justice systems from the beginning. Through yarning circles run by Yoorrook, this theme was also commonly raised by Elders in the community. It is also required by Yoorrook’s Letters Patent (official documents to establish the commission) that they investigate these systems and the issues, injustices, and failures mob experience within them.

The child protection and criminal justice systems run deep in Victoria’s foundations with historic injustices from colonial times resembling those experienced today. In their efforts to colonise and force the assimilation of our people, our children were removed and police/colonial justice systems served to criminalise and imprison as well as legitimise the violence mob faced. Today our children continue to be removed at alarming rates and there have been over 500 deaths in custody across the country since the Royal Commission into Aboriginal Deaths in Custody.

These historic injustices rooted themselves into the foundation of this country and continue today.

Yoorrook for Justice Key Facts. Source Yoorrook for Justice pp. 24-25.

The Findings: Child Protection System

‘Part D’ provides an overview of the child protection system and the evidence heard and the way forward for the following categories:

• Early help, prevention and intervention.
• Child removal.
• Out of home care
• Permanency and family reunification.

The trauma of not only the current child protection system but also that of the historical system continue to have a large impact on Aboriginal and Torres Strait Islander families and communities. There is a strong link between child removal practices of the past and those our community experience today. The Aboriginal Protection Act 1869 (Vic) made Victoria the first colony to establish an act that allowed the government to have total regulation over the lives of Aboriginal people, particularly through the re-established Central Board for the Protection of Aborigines. The Board was able to dictate who Aboriginal people could marry, where they could work and live, and when they could go into the local town. Amendments were made in the following years, often referred to as the Half-Caste Act which led to the removal of Aboriginal children and the Stolen Generation. 

The Yoorrook Justice Commission heard a range of evidence from many different people concerning the historical and current injustices of the child protection system. Below are just some of the key findings regarding child protection:

1. Aboriginal over-representation in the child protection system has grown and is unacceptable. In the last six years the rate of involvement of Aboriginal children in the child protection system AND the rate of Aboriginal children in out-of-home care has disproportionately increased compared to non-Indigenous children. 
2. Lack of cultural safety in universal services. Evidence was presented to Yoorrook that showed mainstream universal services such as health and education services exhibited racism, cultural ignorance, and a lack of cultural safety. Early intervention services were shown to not be effective in assisting Aboriginal children as their families feel that the services are not culturally safe and are therefore inaccessible. Cultural safety is not just about a lack of discriminatory behaviours but also an understanding of our culture and cultural practices such as kinship.
3. Significant investment is needed in Aboriginal-led front end services. Equitable funding is needed for Aboriginal Community Controlled Organisations (ACCOs) due to the lack of trust in mainstream services. Yoorrook saw calls for more funding to be given to ACCOs for the provision of holistic services.
4. Pre-birth reports. A pre-birth report is a report to child protection that takes place prior to the birth of the child. Evidence showed that in 2022 there were 491 pre-birth reports regarding Aboriginal and Torres Strait Islander children and that the rate of pre-birth reports is double that of non-Indigenous children. Evidence also suggests that racist stereotypes, assumptions, and bias continue to drive these reports made by health practitioners. 
5. There is racism and a lack of cultural competence among Department of Families, Fairness and Housing (DFFH) staff. Yoorrook received evidence of overt racism among child protection staff at DFFH such as talking down about Aboriginal families and ACCOs as well as saying racist things, sometimes screaming them across the office to each other.
6. Harm caused by removing a child from culture and community is not adequately considered. Evidence provided said the harm that this disconnection causes is not given enough weight in DFFH assessments that recommend removing a child. 
7. The over-representation of Aboriginal children in Victorian out-of-home care is the worst in the country. Victoria has the highest rate of children in out of home care in the country at 102.2 children per 1000 (2021-2022).
8. The State is not acting as a good parent would. Evidence heard showed that child protection makes little effort to actively monitor the health, wellbeing, and cultural connections of kids in care.

The Findings: Criminal Justice System

‘Part E’ provides an overview of the criminal justice system and the evidence heard and the way forward for the following categories:

• Police
• Bail
• Youth justice
• Courts, sentencing and classification of criminal offences
• Victorian prisons

The criminal justice system continues to fail First Nations Peoples in Victoria. The current system traces its beginnings back to colonial times when the presence of our people threatened colonists' attempts to steal and secure land. The violence of the colonists eventually became tied to the violence of the state with the implementation of racist legislation, policies, and institutions. Police were often the enforcers of this violence and the colonial State was able to legitimise the violence as being a response to the resistance of First Nations Peoples. Today our people continue to be discriminated against by the justice system and face racism, over-representation, violence, and dehumanisation by institutions within the criminal justice system, such as the police and the courts.

Yoorrook heard evidence of the systemic failures of the criminal justice system and how it impacts our peoples rights, wellbeing, and safety. The evidence showed that the injustices resulting from the system can be attributed to many factors including:

• Entrenched systemic racism
• A lack of understanding of the experiences and needs of First Nations Peoples
• Failure to uphold our right to self-determination.
• Lack of evaluation and accountability for commitments made under government policies and major agreements

Recommendations

Yoorrook for Justice outlines 46 recommendations across five categories. The expectation is that the Victorian Government will commence work immediately to implement these recommendations in the hope they can be achieved in the next 12 months. The implementation of these recommendations will be monitored by the Yoorrook Justice Commission.

Below are brief descriptions of a few of the recommendations found in each category. The full list of recommendations can be found on pages 26 to 40 of the report.

Category One: Transformative change to the child protection and criminal justice systems through the treaty process.

Recommendation 1: The Victorian Government must:

1. Transfer decision making power, authority, control, and resources to First Nations Peoples, giving full effect to self-determination in the Victorian child protection system. 
2. They must negotiate this through the Treaty process.
3. Go beyond the existing powers and functions of under the Childrens, Youth and Families Act 2005 (Vic). This will need new, dedicated legislation, developed by First Nations Peoples.
4. Take all necessary steps to begin and diligently progress the establishment of a dedicated child protection system for our children and young people. This is to be developed by the First Peoples Assembly of Victoria based on our right to self-determination as well as our human and cultural rights.

Recommendation 2: The Victorian Government must give full effect to our right to self determination in the Victorian criminal justice system as it relates to us. This includes negotiating through the Treaty process and the transfer of decision making power, authority, control, and resources in that system to us. 

Category Two: Urgent actions across both the child protection and criminal justice systems relating to accountability, cultural competency and responsiveness, and strengthening compliance with human and cultural rights obligations.

Recommendation 4: The Victorian Government must negotiate in good faith with the First Peoples’ Assembly of Victoria:

1. The establishment of an independent and authoritative commission for the monitoring and evaluation of policies and programs related to our community.
2. The functions and membership of this commission.
3. They must give this commission the necessary resources and authority to hold government ministers, departments, and entities responsible for the success or failure of the programs they develop and deliver.

Recommendation 6: Following a public consultation with the First Peoples Assembly of Victoria and other community organisations, the Victorian Government must clarify and and strengthen the Charter of Human Rights and Responsibilities Act 2006 (Vic) so that it requires public authorities to act in a manner that is compatible with our human and cultural rights, as well as ensures these public authorities are held accountable when doing otherwise. 

Category Three: Urgent reforms to the child protection system.

Recommendation 10: The Victorian Government must give a direction to all health services that clinical and allied health staff working with pregnant women must receive appropriate training to address bias and build competency in working in a culturally safe way that meets the social and emotional needs of families. This training must be developed and delivered by a community organisation, they must be paid, and the completion rates of the training must be public.

Recommendation 22: The Victorian Government must amend the Children, Youth, and Families Act 2005 (Vic) to provide the Children’s Court with greater powers to ensure that cultural plans are developed, implemented, and monitored.

Category Four: Urgent reforms to the criminal justice system.

Recommendation 27: The Victorian Government must establish and resource an independent police oversight authority, led by a statutory officer who has not been a police officer. This authority will have a number of duties including investigating and determining complaints about police, investigating and reporting on all police contact deaths and serious incidents, conducting independent monitoring of and reporting on police custody and detention, and publishing reports in the public interest. The authority will have the power to arrest, search property, and compel the production of information including from Victoria Police and must have a dedicated division for complaints from First Nations Peoples that is led by First Nations Peoples.

Recommendation 40: The Victorian Government must amend relevant legislation to clearly prohibit routine strip searching at all Victorian prisons and youth justice centres. It must ensure data on the use of strip searching is made publicly available and used to monitor compliance with prohibition of routine use.

Category Five: Legislative reforms required to enable Yoorrook to fulfill its mandate for truth telling.

Recommendation 45: By 29 February 2024 the Victorian Government must ensure new statutory protection for public records so that information shared with Yoorrook will be kept confidential for a minimum of 99 years following the conclusion of Yoorrook.

Recommendation 46: The Victorian Government must review section 534 (Restriction on publication of proceedings) of the Children, Youth and Families Act 2005 (Vic) to create a model that 

1. places clear time limits on the operation of the section so that where publications involve adults who have given consent or in Children’s Court matters that are historical these prohibitions do not apply. 
2. Enables a Royal Commission or similar inquiry to publish information about a child where the child is capable of understanding the consequences of losing anonymity and provides their consent.

It must also ensure that any review of section 534 is led by mob as the proposed reforms affect our community.