Legislation Child Protection 

Key principles guiding legislation

The following information gives you some useful background to the legislation. It has been adapted from the paper compiled by Deborah Scott, Research Fellow, with the Child Family Community Australia information exchange at the Australian Institute of Family Studies. You can find more information here

 

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:

 

The ‘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.

 

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.”

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.

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 here.

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.

Further information in relation to this can be found through the Royal Commission report on Jurisdictional Working with Children Checks and Police Checks

 

*Bromfield, L. & Holzer, P. (2008). A national approach for child protection: Project report [A report to the Community and Disability Services Ministers' Advisory Council] (PDF 1.0 MB). Melbourne: National Child Protection Clearinghouse, Australian Institute of Family Studies. Retrieved from <www.aifs.gov.au/sites/default/files/nch/pubs/reports/cdsmac/cdsmac.pdf>