Australia needs a uniform national approach to child-protection legislation

Given the relatively small size of Australia there would be many who would agree with those who suggest (Word doc) that "eight different sets of child protection legislation in a country of 19 million is excessive." Each state has a child protection regime and the Commonwealth having the Family Law Act. What this means is that there are multiple arenas where matters of parenting and child protection might be dealt with.

There is a complex system of arrangements whereby a child protection dispute might arise in a state children's court or in the federal Family Court, or within the recently created Federal Magistrates Service. These jurisdictional overlaps ultimately confuse proceedings, particularly for parents and children, and appear to be inevitable in the current system. However, there is a fundamental difference in that the ‘public’ arena of the state children's court is to determine whether the child needs protection, while the ‘private’ Federal arena is generally to determine parenting disputes between parties. We also need to consider whether it is acceptable in Australia for a child to be protected from a particular abusive situation in one state but not in another.

Child Welfare legislation in Australia has undergone significant changes during the past decade. Many of the state governments have enacted new legislation during this time and there are some similarities that are emerging between them.

The form and principles of legislation have changed during the twentieth century from ideals of charity, adult rights and control towards greater recognition of the need to protect children and recognition that children have rights that need to be upheld. The United Nations Convention on the Rights of the Child and the Family Law Act 1975 promote actions in the "best interests of the child" and provide an influence on more recent child welfare legislation in the states.

Many of the Australian States and Territories have enacted child welfare legislation during the past decade. As has been the case in the past, the states and territories are influenced by each other, and a number of key similarities have begun to emerge in this recent legislation.

Many of the responses of child welfare systems in the past have been to remove and separate children from their families. This has often been the mainstay of child welfare policy, and efforts to preserve family and cultural relationships have tended to be a more recent phenomenon. The principle of preserving family relationships and role is in place in some of the recently enacted child welfare legislation in Australia.

In recent times there has been renewed focus on the needs of children who can't return to family. While there are increasing support services for children and families to be reunified and preserved, there are still many children who will need to be in the care system for long periods of time. While the debate can sometimes be portrayed as one about adoption, the first options proposed are for return to family or extended family (pdf file).

In contrast to some of the practices that have characterised child welfare practice in the past in Australia, there is an increasing focus on the role of partnership and participation, both with families and the community.

The child welfare environment in Australia is fragmented by numerous jurisdictions and a variety of responsible bodies. This often leads to less-than-ideal results for children where there are multiple agencies involved in their life with little coordination between them. The system is so disorganised at times that agencies can attempt to pass responsibility to others so as to minimise their workload, without cognisance of the impact on children and families.

Justice Nicholson says he finds it remarkable that there are fundamental differences between the states and territories in the way that child abuse is defined. The definitions have been expanded in New South Wales where family/domestic violence has now been accepted as a form of child abuse. This is an extension of the orthodoxy that has evolved over the past 30 years of recognising sexual, physical, emotional abuse and neglect as the primary forms of child abuse.

Each of the States and Territories has a point below which statutory child protection intervention is not warranted. These intervention thresholds vary from state to state with Victoria determining "significant harm", New South Wales determining "in need of care", and South Australia determining "at risk". These differences are important since more children might be determined to be in "need of care" than might be assessed as having "significant harm".

The intervention threshold test is a critical issue in child protection matters since this is clearly the first decision that faces all child protection matters: Do I have a mandate to intervene? However, there is a great variation between the states, which leads to a lack of consistency in Australia as to whether a child maltreatment allegation will be investigated.

Once a child welfare matter has been investigated a decision-making standard needs to be applied. As with the threshold test there is variety in the standards applied in the states and territories. The Family Law Act 1975 and some of the States and Territories apply the principle of the "best interests of the child". However, in the other States there are a variety of phrases such as the "welfare of the child".

Mandatory reporting exists in every state except Western Australia. The states vary as to who is mandated and what incidents or circumstances require a mandated person to report. The introduction of mandatory reporting has generally seen an increase in the number of reports being made. It also has tended to increase the profile of child abuse as a societal issue for the general public as well as for mandated persons. However, states like New South Wales are so overwhelmed by responding to notifications of abuse that they don't have sufficient resources for prevention and support programs.

Across the States and Territories there are forms of the Aboriginal Child Placement Principle. This principle, if adhered to, ensures that all attempts are made to place Aboriginal children with Aboriginal relatives as a priority. New South Wales and Victoria have legislated the Aboriginal Child Placement Principle, while others have departmental policies in place. Given the over-representation of Aboriginal children in care it is not difficult to accept the contention that the principle should be legislated in all states to ensure that the highest priority is given to minimising the cultural impacts of child protection in the Aboriginal communities.

It is suggested (pdf file) that the major obstacle to full implementation of the United Nations Convention on the Rights of the Child is the way the Australian Constitution separates powers between the state and federal arenas. The ratification of the Convention by the Australian Commonwealth Government does not mean the Convention automatically becomes part of Australian law. The Commonwealth can enact legislation to give effect to the Convention in such a way that it overrules any State laws. The Commonwealth government has chosen not to put legislative weight behind the Convention and has in fact allowed State governments to act contrary to the Convention.

There a number of paths that could be pursued in the quest for National Uniform Child Welfare legislation.

• While the Commonwealth has to legislate for the rights described in the United Nations Convention on the Rights of the Child to have effect in Australia, contrary opinions are backed by decisions of the High Court of Australia. In the case of Minister for Immigration v Ah Hin Teoh (1995) the High Court ruled that while the Convention has not been incorporated by legislation into Australian law, this does not mean it has no effect. The High Court stated that statute law should be read (unless it is to the absolute contrary) so as to assume that a meaning of the statute that could support the Convention should be the preferred meaning. The High Court also noted that the development of the common law can be rightly influenced by the international conventions that the Commonwealth sees fit to ratify.

• Section 51(37) of the Constitution allows the states to refer agreed powers to the Commonwealth government. This has occurred in recent times when the States referred their right to legislate on corporate law, allowing the Commonwealth to legislate for the whole country. If the example of Corporations Law in Australia is to be of use in regard to Child Welfare Law reform then it is in highlighting the difficulty of cooperation between States and the Commonwealth in Australia.

• Another method for achieving a national legislative framework is where the states agree on a "model law", and then all agree to enact the same legislation in each state. An example of this in recent times is the agreement by the states to enact legislation allowing the transfer of child welfare orders between states, thereby allowing guardianship or supervision orders etc. to be transferable between states. This is a good outcome that allows greater protection for children. However, if the legislation is not enacted in each state, or is enacted differently in each state the outcome for children is not ideal.

• In the past there have been cross-vesting arrangements between the State and Commonwealth jurisdictions in relation to child protection matters. This had allowed the Family Court to exercise state-based child welfare powers when child protection issues arose in the course of its work. This allowed Family Court magistrates to actually make a child a state ward under state legislation. However, in Re Wakim; Ex parte McNally the High Court in 1999 ruled that the legislation that had vested state powers to a federal court was invalid. This stopped the Family Court from deciding child protection matters, except in the state-based Western Australian Family Court.

• The report of the Family Law Council (2000) titled The best interest of the child? The interaction of public and private law in Australia canvasses a range of proposals for reform to the child welfare system in Australia. One of the major proposals is for a unified Family Court that can deal with all matters that arise in families. This would require the referral of all child welfare powers to the Commonwealth.

While it is clear from the above that there has been some discussion in the community of the need for uniform child welfare legislation in Australia there is no consensus in the professional or general community that this is a desirable outcome. Indeed there may never be a consensus that uniformity is desirable or achievable. Even if the professional or general community thought it was desirable there is no guarantee that there would be the political will to make the major changes necessary for it to happen. However, if Australia wishes to treat families and children with any degree of equality a national approach in child protection should be attempted.