Alternatives to the cross-vesting scheme

A full transfer of powers to the Commonwealth

15.42 A frequent suggestion to the Inquiry to overcome the jurisdictional problems was that power to legislate in respect of the care and protection jurisdictions of the States and Territories should be transferred entirely to the Commonwealth.[102] Barnardos Australia, for example, suggested that responsibility to legislate for care and protection, for portfolio management and for service delivery should be transferred to the Commonwealth.

There is little doubt that State Governments have a poor record in the area of child protection and provision of care…[T]here are important issues in child welfare which must be tackled at the Federal level, as the States have consistently failed. Child Welfare is closely associated with childcare policy, housing issues, income security and adolescent homelessness and health. All these policy issues need to be developed together.[103]

Other comments included the following.

The Family Court should have the power to deal with relevant matters within the child welfare jurisdiction which affect residence/contact proceedings.[104]

The Committee supports a referral of power to the Family Court in the interests of ensuring that all matters concerning children are dealt with within the one jurisdiction and to avoid the present difficulties.[105]

Merging of the jurisdictions would be a huge and difficult task but it deserves consideration.[106]

…the Family Court should be given this power. An examination of the English court system demonstrates the advantages of an integrated, uniform system which deals with all non-criminal matters relating to children.[107]

15.43 Some submissions and comments during public consultations suggested that the Family Court is particularly suited to dealing with care and protection because it is less adversarial in nature. The Family Court Counselling Service was considered to be a good illustration of the less adversarial nature of Family Court processes.[108] Other comments to the Inquiry disputed these assertions, particularly suggesting that children’s courts are directly child focused whereas the Family Court allows parents to consider their children in the same way as they do their property — as an asset to be fought over and divided.[109] The proposal for a transfer of the care and protection jurisdiction to the Family Court was also criticised because the Family Court generally experiences greater delays than do children’s courts.[110] Several submissions agreed with the proposition, that

I cannot see how the Family Court could function appropriately as a welfare body offering care and protection for children.[111]

15.44 While a single court dealing with family law and care and protection proceedings is an attractive proposal, a transfer of legislative authority by the States and Territories is unlikely at present to attract the necessary political support in all jurisdictions. Effecting this reform would also carry significant difficulties in practice. Transferring all legislative power in the area, including service delivery responsibilities currently residing with States and Territories, would go much further than the transfer of the legislative power necessary to enable the Family Court to exercise the care and protection jurisdiction envisaged by the cross-vesting scheme. It would require a significant re-organisation of resourcing priorities between the levels of government. The federal Attorney-General’s Department suggested that the Inquiry consider a transfer of power and a vesting back to State and Territory courts of jurisdiction to hear care and protection matters. This does not avoid the problem that the Commonwealth would then have the capacity to introduce legislation ousting State and Territory jurisdiction to the extent of the transfer of power.[112] Even a limited transfer of power as suggested would generate significant political sensitivities.

15.45 However, a transfer of power may become the only viable method of achieving a real resolution of these jurisdictional difficulties if the current High Court challenge to the cross-vesting scheme succeeds.[113] If the challenge is successful and the cross-vesting scheme is to be dismantled, the option of a transfer of power should be considered.

Limited transfer of power to the Commonwealth

15.46 A further alternative which could achieve a rationalisation of the care and protection and family law jurisdictions, at least in part, is a limited reference of power to the Commonwealth. It could be implemented if neither the proposed cross-vesting scheme nor the full transfer of power were pursued.

15.47 All jurisdictions agreed in 1990 through SCAG to make limited references of power to allow orders under the Family Law Act, such as contact orders, to be made concerning a child in care with the consent of the State or Territory family services minister.[114] Tasmania and NSW have already introduced this legislation. Other jurisdictions should implement this agreement as a limited alternative to the cross-vesting proposals and a fuller transfer of power. This would address some of the problems associated with the jurisdictional divisions but by no means all.

15.48 This mechanism could also be extended to allow the Family Court to exercise State and Territory jurisdiction under the care and protection legislation with the consent of the relevant State or Territory minister.[115] This would avoid the problem of a full transfer of power under section 51(xxxvii) of the Constitution by transferring legislative power effectively only to the extent of allowing the Family Court to hear proceedings.

[102] This transfer would be available under s 51(xxxvii) of the Constitution and gives power to legislate in the area. The cross-vesting scheme merely purports to vest jurisdiction in courts to hear matters.

[103] IP Submission 95.

[104] Qld Law Society IP Submission 190.

[105] Law Institute of Vic Family Law Section IP Submission 173.

[106] Darwin Practitioners’ Forum 16 July 1996.

[107] Burnside IP Submission 214. See also North Qld Women’s Legal Service DRP Submission 45; SAChildren’s Interest Bureau Board DRP Submission 79; Canberra Practitioners’ Forum 6 May 1996; Newcastle Practitioners’ Forum 13 May 1996; Bendigo Practitioners’ Forum 31 May 1996; Perth Practitioners’ Forum 3 July 1996.

[108] eg Children’s Court Melbourne IP Submission 51.

[109] eg Darwin Community Legal Centre Public Hearing SubmissionDarwin 17 July 1996; Perth Practitioners’ Forum 3 July 1996; Qld Legal Aid Minutes of Meeting Brisbane 30 July 1996.

[110] eg Children’s Court Melbourne IP Submission 51. rec 132 is intended to address this issue.

[111] Confidential IP Submission 93. See also MG Hains DRP Submission 24; Perth Practitioners’ Forum 3 July 1996.

[112] See RD Lumb & GA Moens The Constitution of the Commonwealth of Australia 5th ed Butterworths Sydney 1995, 281–284.

[113] See para 15.28.

[114] Commonwealth Powers (Family Law) Amendment Act 1994 (Tas); Commonwealth Powers (Family Law — Children) Amendment Act 1996 (NSW).

[115] In the event of the failure of the cross-vesting scheme this arrangement could be extended to allow the Family Court to hear matters under State and Territory care and protection legislation. This proposal would survive any failure of the cross-vesting scheme because it represents a limited reference of legislative power to the Cth under s 51(xxxvii) of the Constitution. It does not merely allow the Family Court to exercise State jurisdiction.