Australia needs a uniform national approach to child-protection 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.