20.1 The interaction of state and territory child protection laws with a range of other state and territory laws is one of the areas under consideration in this Inquiry.[1] This chapter focuses on the intersections between child protection law, the criminal law and the law relating to family violence protection orders, and considers ways to address gaps between child protection and criminal laws to improve the protections for children whose safety is threatened in situations involving family violence.

20.2 As noted in Chapter 4, the various laws under consideration reflect different purposes. Child protection laws operate within a child welfare paradigm, the main purpose of which is to provide measures to assist and support children and young people who are in need of care and protection.[2] A consistent theme across all child protection laws—and one which is shared with the family law jurisdiction, considered in Chapter 19—is that the welfare and best interests of the child are the paramount consideration.[3] In a child welfare context, central to determining the best interests of a child is the importance of preserving the integrity of the family unit and promoting a child’s positive relationships with his or her family by offering support and assistance to the family. Consistent with this philosophy is the obligation on the state to limit its intervention in the relationship between a child and parent to that which is necessary to secure the safety and wellbeing of the child.[4]

20.3 The purposes of family violence legislation in the states and territories are expressed in various ways, a common theme of which is ensuring, facilitating or maximising the safety and protection of persons, including children, who fear or experience family violence or are exposed to it. The protection of children is central to both child protection laws and family violence protection orders.

20.4 Criminal laws, however, have different purposes, focusing upon the maintenance of social order and defining the fundamental requirements for a person’s treatment of others. Central to the concept of criminality are the notion of individual culpability and the criminal intention for one’s actions.[5] Where family law disputes are regarded as ‘private’ disputes, concerning litigation between individual litigants, criminal law is ‘public’ because it is the state which is responsible for the investigation and prosecution of offences. Common to both the criminal law and child protection law is the central role played by the state.

20.5 The recommendations made in this chapter reflect the context of the different purposes that each legislative regime serves. The chapter begins with an examination of specific offences of child abuse and neglect contained in child protection legislation and the criminal law, which in large part reflect the grounds upon which a legislative child protection intervention is triggered. This is followed by a discussion of specific issues relating to information sharing between the two central agencies responsible for executing the state’s child protection and prosecution functions—the child protection agency and the police. The Commissions make recommendations aimed at facilitating greater information sharing and cooperation between these two agencies to ensure a more coordinated and effective response to child abuse and neglect. The specific issues considered include: permitting otherwise confidential information to be shared with law enforcement agencies in limited circumstances; fostering the involvement of the child protection agency in decisions to prosecute; and promoting more constructive and effective reporting practices by police. The chapter also discusses—and makes recommendations in relation to—the powers of children’s courts to make family violence protection orders, and their capacity to refer concerns for the safety of children and young people, that arise in the course of proceedings, to child protection agencies for investigation and report.

[1] See Ch 1.

[2] See Ch 19.

[3] Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(a); Children, Youth and Families Act 2005 (Vic) s 10(1); Child Protection Act 1999 (Qld) s 5(1); Children and Community Services Act 2004 (WA) s 7; Children’s Protection Act 1993 (SA) s 4(1); Children, Young Persons and Their Families Act 1997 (Tas) s 8(2)(a); Children and Young People Act 2008 (ACT) s 11; Care and Protection of Children Act 2007 (NT) s 9.

[4] See, eg, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(2)(c); Children, Youth and Families Act 2005 (Vic) s 10(3)(a). See also Chs 4, 19.

[5] Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report 95 (2002), [2.9]. See also Ch 4.