Decolonisation, biopolitics and neoliberalism: An Australian study into the problems of legal decision-making

This paper examines the importance of decolonisation to counter the ongoing harms of state-sanctioned child removal policies that disproportionately affect First Nations families and communities in Victoria, Australia. Ongoing legacies of structural disadvantage, including drug abuse, mental ill-health, limited and conditional income support, and housing insecurity, are governed through a selective biopolitical vision that has informed child protection policies since colonisation. Family separation is assumed to protect both vulnerable children and the general community. We argue this logic reinforces structural inequalities that place unreasonable burdens on First Nations mothers to engage in ‘desirable’ and responsible parenting. We present current statistics on the over-representation of First Nations children in the Victorian child protection system, then describe how Western notions of biopolitics view family separation as central to protecting children. This approach now invokes neoliberal modes of governing through risk management, rather than supporting vulnerable families. We then briefly describe Victoria’s child protection system, and critically examine key factual and procedural issues emerging from the application of the ‘best interests’ principle in four case studies documenting legal appeals instigated by First Nations families. We conclude by proposing decolonisation as a counterpoint to a governmental rationality that endorses the protection of children through state-sanctioned family separation.