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

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 principal child protection Acts in each Australian state and territory are listed in Table 1. The table also outlines other Acts of Parliament pertinent to the operation and delivery of various services to children and families across Australia.

^a For information on the state or territory agency responsible for child protection see Reporting Abuse and Neglect: State and Territory Departments Responsible for Protecting Children

Key principles guiding legislation

Australia is a signatory to the United Nations Convention on the Rights of the Child (1989) and many of the principles within the Convention are embedded within child protection legislation. Together with policy frameworks, which depict the nature, extent, and fashion in which services and interventions are to be provided, legislative principles reflect the service goals to which governments aspire. Bromfield and Holzer (2008) in a study examining similarities and differences in child protection services across Australia, found that legislation in each state and territory differed considerably in accordance with local needs. However, legislation across all states and territories were found to possess similar guiding principles in several key areas. These include:

A “best interest” principle

Legislation in all jurisdictions identify the paramount importance of the principle of the “best interests of the child” and policy provisions providing guidance as to how such decisions are made are presented in each jurisdiction.

Early intervention

While all jurisdictions consistently identify the active use of early intervention services with the goal of preventing entry/re-entry in the statutory system, the approaches in the delivery of such services varies (for example, the degree to which non-government service providers are involved/ responsible for the delivery of services and funding sources).

The participation of children and young people in decision-making

Legislation in all Australian jurisdictions endorses the importance of involving children and young people in decision-making (to the extent that their age and maturity enables) and to consult and seek the views of children on issues affecting their lives. To illustrate, 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 represents the most extreme end of the statutory child protection continuum (given that other protective options are typically exhausted before alternative care arrangements are pursued for children deemed 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 in out-of-home care are placed according to an Order made by the relevant court.

Culturally specific responses to Aboriginal and Torres Strait Islander people

General provisions regarding maintaining a child’s sense of cultural identity and community connectedness are present in legislation of each jurisdiction with respect to all children (both Indigenous and non-Indigenous). Provisions specific to Aboriginal and Torres Strait Islander children, young people and their families are particularly pertinent with respect to the provision of out-of-home care. All relevant Acts make reference to placement principles for Aboriginal and Torres Strait Islander children (often termed the “Aboriginal Child Placement Principle”) either in legislation, and/or policy, or other forms of delegated legislation such as regulations.

Key issues that were found to be less consistent with several variations in each state and territory included:

“After care” support

After care support is premised 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 regarding after care support are detailed in all jurisdictions in Australia, however, variations exist in the ages to which child protection departments expressly stipulate that after-care support is to be provided to young people. For example, in Victoria, legislation provides for after-care support up to 21 years of age; New South Wales, South Australia, the Northern Territory and Western Australia provide support up to 25 years of age. The Australian Capital Territory, Queensland and Tasmania have provisions, however the age to which support is provided is not stated.

Permanency planning and stability of care

Permanency planning is a relatively recent area of development in Australian child protection. Given that it is a recent development, not all jurisdictions have implemented legislative provisions around this aspect of service planning and delivery. Nonetheless, in jurisdictions without express mention of permanency planning in legislation, policy frameworks often provide guidance with respect to this area.

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 that aims 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.

The Child Family Community Australia information exchange endeavours to ensure that information is accurate and up-to-date. A time delay may exist between legislative change and the update of this sheet. If you are aware of information in a CFCA information exchange paper that is incorrect or out-of-date, please contact us.

References

• Bromfield, L. M., & Holzer, P. J. (2008). A national approach for child protection: Project report (PDF 1 MB). Retrieved from <www.aifs.gov.au/nch/pubs/reports/​cdsmac/cdsmac.pdf>
• United Nations. (1989). Convention on the rights of the child. Geneva: Office of the High Commissioner for Human Rights.