Australia needs a uniform national approach to child-protection legislation

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.