Overview

This resource sheet provides a brief overview of child protection legislation across state and territory jurisdictions in Australia.

Child protection in Australia

Child protection is an area of public law where authorities may intervene in family settings because of an allegation of harm or significant risk of harm to a child (Titterton, 2017).

In Australia, state and territory governments are responsible for the administration and operation of child protection services. Legislative acts in each state and territory govern the way such services are provided. The main child protection acts in each Australian state and territory are listed in Table 1. The table also outlines other acts of Parliament that are relevant to the operation and delivery of various services to children and families across Australia. For an overview of these acts, grouped by topic, see the Appendices.  

^a For information on the state or territory agency responsible for child protection see CFCA publications Reporting Child Abuse and Neglect: State and Territory Departments Responsible for Protecting Children and Developments to strengthen systems for child protection across Australia (Wise, 2017).

Key principles guiding legislation

Australia is a signatory to the United Nations Convention on the Rights of the Child (United Nations, 1989) and many of the principles of the convention are included in Australia’s child protection legislation. Key pieces of Commonwealth (Cth) legislation provide guidance to states and territories, particularly the Family Law Act 1975 (Cth) and the Australian Human Rights Commission Act 1986 (Cth). This act contains the functions of the Human Rights Commission relating to the convention. The convention can be accessed online.

Human rights guidance for child protection is also applied in some state and territory legislation, including:

• Human Rights Act 2004 (ACT);
• Human Rights Commission Act 2005 (ACT);
• Human Rights Act 2004 (NSW); and
• The Charter of Human Rights and Responsibilities Act 2006 (Vic.).

Together with policy frameworks, which show the nature and extent of services and interventions to be provided, legislative principles reflect the service goals governments aspire to.

Child protection legislation in each state and territory across Australia differs according to local needs (Bromfield & Holzer, 2008; Fernandez & Atwool, 2013; Wise, 2017). However, legislation across all states and territories has similar guiding principles in several key areas. These principles include:

• best interest of the child;
• early intervention; and
• the participation of children and young people in decision-making processes.

An overview of these three guiding principles in state and territory legislation is provided below. Provisions for out-of-home care and culturally appropriate child protection responses for Aboriginal and Torres Strait Islander people also guide state and territory legislation, and are summarised below.

A best interest principle

Legislation in all jurisdictions identifies the best interests of the child as the primary principle. Each jurisdiction has policy provisions to guide decision making in line with this principle.

Early intervention

While all jurisdictions identify the use of early intervention services to prevent entry or re-entry into the statutory system, delivery of these services varies. For example, how much non-government service providers are involved in, or responsible for, the delivery of services and their funding.

Participation of children and young people in decision making

Legislation in all Australian jurisdictions supports involving children and young people in decision making (to the extent that their age and maturity allows). This includes consulting with and seeking the views of children on issues affecting their lives. For example, section 8(3) of the Children, Young Persons and Their Families Act 1997 (Tas.) states “in any exercise of powers under this Act in relation to a child, if a child is able to form and express views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child’s age and maturity.”

Out-of-home care

Out-of-home care is the extreme end of statutory child protection. Other protective options are typically exhausted before alternative care arrangements are made for children seen to be at risk of maltreatment. Although there are provisions for children to be placed in out-of-home care voluntarily by parents (e.g., for respite), most children are placed there by an order made by the relevant court.

Culturally specific responses to Aboriginal and Torres Strait Islander people

Each jurisdiction has general provisions for maintaining a child’s sense of cultural identity and community connectedness for all children—both Indigenous and non-Indigenous. There are specific provisions for Aboriginal and Torres Strait Islander children, young people and their families for those going into out-of-home care. All relevant acts make reference to placement principles for Aboriginal and Torres Strait Islander children (often referred to as the “Aboriginal Child Placement Principle”) either in legislation, policy or other forms of delegated legislation such as regulations.

Key differences in state and territory legislation

Key issues that are less consistent with several variations in each state and territory include after-care support, and permanency planning and stability of care, as detailed below:

After-care support

After-care support is based on the understanding that young people will continue to need support after leaving out-of-home care, as they make the transition to independence. Legislative provisions for after-care support are detailed in all jurisdictions in Australia; however, variations exist in the ages at which young people are eligible to receive after-care support from child protection departments. For example, in Victoria and Queensland legislation provides for after-care support for young people up to 21 years of age. Comparatively, New South Wales, South Australia, the Northern Territory and Western Australia provide support for young people up to 25 years of age. Although the Australian Capital Territory and Tasmania have provisions for after-care support, no age limit is stated. More information about after-care support is available in the Supporting Young People Leaving Out-Of-Home Care paper (Campo & Commerford, 2016).

Permanency planning and stability of care

Permanency planning is a relatively recent area of development in Australian child protection, and is now a major consideration in providing future stability for children in out-of-home care. Permanency planning is the process of developing long-term care arrangements for children when there is no possibility for them to be safely reunited with their families (AIHW, 2016). As a recent development, not all jurisdictions have implemented legislative provisions around this type of service planning and delivery. Nonetheless, in jurisdictions without specific mention of permanency planning in legislation, policy frameworks often provide guidance in this area.[1]

National Framework for Protecting Australia's Children 2009–2020

The National Framework for Protecting Australia's Children 2009–2020 was developed by the Council of Australian Governments and uses a public health approach to place children's interests at the centre of all policy and legislative development. The National Framework and associated documents can be accessed online.

While child protection legislation is the jurisdiction of state and territory governments, the National Framework is a cooperative document that aims to provide a shared, national agenda for change in the way Australia manages child protection issues. The framework seeks to resolve the differences that exist across state and territory jurisdictions, some of which are outlined above. While there has been no nationally consistent legislation implemented at the state or territory level, there is work at a policy and practice level to address these discrepancies.

For example, uniformity across the ways in which Working with Children Checks are carried out is a priority of the National Framework. At a policy level, National Standards for out-of-home care have been implemented that influence policy and practice, although this is not currently represented in the legislation.

Appendices

Overview of key pieces of Australian child protection legislation

Note: *The Australian Human Rights Commission Act 1986 (Cth) is included here as it contains the UN Declaration of the Rights of the Child (Schedule 3).

Relevant legislation

Police and criminal justice

Legislation on police powers and responsibilities relates to child protection in matters including sexual abuse, female genital mutilation of girls and young women, and the abduction of a child. It specifies the extent of police powers under separate acts related to child protection, particularly with child abuse and neglect.

Legislation on youth justice guides criminal justice proceedings for children and young people. Most states and territories have dedicated youth justice acts, except for the Australian Capital Territory, which has made provisions for youth justice matters in the Children and Young People Act 2008 (ACT).

Legislation about sex offender registration and reporting requires certain individuals who have committed sexual offences to notify police of their personal details, such as home address and employment. This is to prevent registrable offenders from causing harm or risk of harm to children. See the CFCA resource on Offender Registration Legislation in each Australian State and Territory for more information.

Legislation on working with children ensures that adults who work with, or care for, children are subject to screening processes to protect children from physical and sexual harms. All states and territories have made legal provisions for adults working with children. See the CFCA resource on Pre-employment Screening: Working With Children Checks and Police Checks for more.

Legislation on family services and child care services includes provisions for the licensing of, and placement of children in, out-of-home care facilities and support services for children. All states and territories have made legal provisions for family services and child care services in Australia.

Family and domestic violence

All states and territories have legislation on child protection matters in family and domestic violence. Family and domestic violence legislation affects children, as they are often included on applications for Family Violence Protection Orders or Restraining Orders, which can be made on behalf of a parent and/or a child.

Child protection in international contexts

Most states and territories rely on Commonwealth regulations on child protection in international contexts and intercountry adoption. However, New South Wales, Queensland and Tasmania have developed their own dedicated legislation on child protection in international contexts.

Adoption and guardianship

All states and territories have dedicated legislation about adoption. With the exception of the Northern Territory, all states and the Australian Capital Territory have made legal provisions to allow for the adoption of children by same-sex couples.

Note: ^a The Northern Territory does not currently allow the adoption of children by same-sex couples.

Children’s commissioners, guardians and advocates generally advocate for children’s rights and protect their interests and wellbeing. State- and territory-appointed commissioners also review laws and policies that affect children, working to protect children from harm or risk of harm, within an independent statutory body. For more information regarding children’s commissioners in Australian states and territories, please see the CFCA resource sheet Children’s Commissioners and Guardians.

Child employment and related services

State and territory legislation restricts the types of work a child can undertake and the conditions regulating that work. While only New South Wales, Queensland and Victoria have dedicated child employment laws, provisions for child employment are found in all states and territories (Workplace OHS, 2009).

References

• Australian Institute of Health and Welfare 2016. Permanency planning in child protection. Child welfare series no. 64. Cat. No. CWS 58. Canberra: AIHW.
• Bromfield, L. M., & Holzer, P. J. (2008). A national approach for child protection: Project report. Melbourne: Australian Institute of Family Studies. Retrieved from <aifs.gov.au/cfca/publications/national-approach-child-protection>.
• Fernandez, E., & Atwool, N. (2013). Child protection and out of home care: Policy, practice, and research connections Australia and New Zealand, Psychosocial Intervention, 22 , 175–184.
• Titterton, A. (2017). Indigenous access to family law in Australia and caring for Indigenous children. University of New South Wales Law Journal, 40 (1), 146.
• United Nations. (1989). Convention on the Rights of the Child. Geneva: Office of the High Commissioner for Human Rights.
• Wise, S. (2017). Developments to strengthen systems for child protection across Australia (CFCA Paper No. 44). Melbourne: Child Family Community Australia (CFCA) information exchange, Australian Institute of Family Studies. Retrieved from <aifs.gov.au/cfca/sites/default/files/publication-documents/44_child_protection_reforms.pdf>.
• Workplace OHS (2009, 7 October). Employment of young persons and child labour laws. Canberra: Workplace OHS. Retrieved from <workplaceohs.com.au/hazards/vulnerable-workers/news/employment-of-young-persons-and-child-labour-laws#.WcsQLq1L2i4>.

[1] See the Developments to strengthen systems for child protection across Australia paper (Wise, 2017), which provides information about recent developments in the permanency principle in all states and territories.