Australian child protection legislation
Last updated August 2014

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

This document is provided as a guide only. Information is current up to the date of publication. Individuals are encouraged to check the currency of any information that is provided by contacting relevant departments or organisations.

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.

Table 1. Child protection legislation in Australian states and territoriesa
Jurisdiction Principal Act Other relevant Acts/Legislation

Australian Capital Territory

Children and Young People Act 2008 (ACT)

Adoption Act 1993 (ACT)

Human Rights Act 2004 (ACT)

Human Rights Commission Act 2005 (ACT)

Public Advocate Act 2005 (ACT)

Family Law Act 1975 (Cth)
New South Wales

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Children and Young Persons (Care and Protection) Amendment (Parental Responsibility Contracts) Act 2006 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW)

Commission for Children and Young People Act 1998 (NSW)

The Ombudsman Act 1974 (NSW)

Family Law Act 1975 (Cth)

Children and Young Persons (Care and Protection) Amendment Bill 2009
Northern Territory Care and Protection of Children Act 2007 (NT)

Information Act 2006 (NT)

Disability Services Act 2004 (NT)

Criminal Code Act 2006 (NT)

Family Law Act 1975 (Cth)
Queensland Child Protection Act 1999 (Qld)

Child Protection Reform Amendment Act 2014 (Qld)

Public Guardian Act 2014 (Qld)

Family Child and Commission Act 2014 (Qld)

Education (General Provisions) Act 2006 (Qld)

Public Health Act 2005 (Qld)

Commission for Children and Young People and Child Guardian Act 2000 (Qld)

Adoption of Children Act 1964 (Qld)

Family Law Act 1975 (Cth)
South Australia Children's Protection Act 1993 (SA)

Young Offenders Act 1994 (SA)

Adoption Act 1988 (SA)

Children's Protection Regulations 2006 (SA)

Family Law Act 1975 (Cth)

Family and Community Services Act 1972 (SA)
Tasmania Children, Young Persons and their Families Act 1997 (Tas.)

The Family Violence Act 2004 (Tas.)

Family Law Act 1975 (Cth)

Children, Young Persons and their Families Amendment Act 2009 (Tas.)
Victoria Children, Youth and Families Act 2005 (Vic.)

Working with Children Act 2005 (Vic.)

Child Wellbeing and Safety Act 2005 (Vic.)

The Charter of Human Rights and Responsibilities Act 2006 (Vic.)

Family Law Act 1975 (Cth)

The Commission for Children and Young People Act 2012
Western Australia Children and Community Services Act 2004 (WA)

Working with Children (Criminal Record Checking) Act 2004 (WA)

Family Court Act 1997 (WA)

Adoption Act 1994 (WA)

Family Law Act 1975 (Cth)

Child Care Services Act 2007

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

Acknowledgements

This paper was updated by Deborah Scott, Research Fellow, with the Child Family Community Australia information exchange at the Australian Institute of Family Studies.

Previous editions have been compiled by Prue Holzer and Alister Lamont.

Publishing details

Published by the Australian Institute of Family Studies, August 2014

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