Political responsibilities for children — jurisdictional arrangements


3.27 Legislative responsibility for the interactions between the state and the family that affect children and for the delivery of services to children and their families is divided between the Commonwealth and the States and Territories and a variety of government departments and agencies. For example, State and Territory governments are responsible for administering many of the legal processes that affect children, including juvenile justice and care and protection. Family law and income support services are federal responsibilities. In addition, the Commonwealth has assumed an over-arching responsibility for the well being of all Australian children as a result of its international legal obligations.[56]

3.28 The terms of reference required an examination of matters relating to children in the legal process, including matters relevant to family and associated proceedings and to young offenders. In IP 18, it was noted that the terms of reference inevitably directed the Inquiry into the care and protection and juvenile justice areas which are matters of State and Territory legislative responsibility. We indicated that there was a good deal of interaction between State or Territory laws and federal laws concerning children, that the Commonwealth had an important role in children’s matters and that any effective examination of federal laws and processes required consideration of State and Territory laws and arrangements. It is contrary to the interests of children to discuss only those parts of their lives presently affected by federal laws and processes, particularly as we have concluded that the federal/State jurisdictional division is part of the problem for children caught in the formal legal system.

The federal jurisdiction

3.29 The delineation of government responsibility for children and their families derives from the Constitution which sets out the powers and responsibilities of the Commonwealth.

3.30 The Constitution sets out those matters in respect of which the federal Parliament can make laws, including matters relevant to this Inquiry such as immigration and emigration,[57] aliens and naturalization,[58] marriage,[59] divorce and matrimonial causes,[60] custody and guardianship of the children of marriages,[61] the provision of social security benefits,[62] the people of any race for whom it is deemed necessary to make special laws[63] and external affairs.[64]

3.31 The laws made under these heads of power are administered by many federal government departments and agencies. They include DSS, DIMA, the Aboriginal and Torres Strait Islander Commission (ATSIC), DEETYA, the Department of Health and Family Services and the Attorney-General’s Department. Some departments, such as DSS, deal directly with children while others, such as the Department of Health and Family Services, may provide funding so that State or Territory governments or private entities can provide services to children.

State and Territory jurisdictions

3.32 Because the Constitution gives the Commonwealth enumerated specific powers, those powers that were not transferred exclusively to the Commonwealth by the Constitution remain available for exercise by the States, subject to the operation of the federal paramountcy provisions of s 109 of the Constitution.[65] The States and Territories have a wide jurisdiction over numerous legal processes that concern children, including care and protection, law enforcement and education. Each State and Territory has its own departments and agencies to administer these processes.

3.33 Further, the parliaments of the Commonwealth and the States and Territories may vest in each other certain of their powers or cross-vest in the courts of the other jurisdiction certain of their jurisdictions. This has been done in some areas of family law.[66]

Problems of service co-ordination and delivery

3.34 The Commonwealth has documented over 230 pieces of federal, State and Territory legislation dealing with issues relevant to children.[67] The administration of these laws is beset by inconsistencies in policy, duplication of services and gaps in services.[68] The division of responsibilities between different levels of govern-ment and between different departments within each level of government means that children and their families often have to negotiate a complex web of agencies when they come into contact with legal processes.[69] Agencies that are so disposed are able to play a waiting game, ‘standing off’ and hoping another agency will assume responsibility for a particular child’s needs.

3.35 This fractured responsibility for children’s issues often leads to inadequate, incomplete and inappropriate results for the children involved.[70] In such a system, children may be the responsibility of more than one agency. For example, some children appear to fall into both State or Territory care and protection and the Family Court jurisdictions. Some are homeless and might be seen as the responsibility of a State’s care and protection department or alternatively of federal agencies such as DSS or DEETYA. Others may come into adverse contact with the police but could just as easily be seen as in need of care by a State or Territory care and protection department. These children can and do slip through the cracks and end up being failed by the system.

[56] See paras 3.15-26.

[57] s 51 (xxvii).

[58] s 51 (xix).

[59] s 51 (xxi).

[60] s 51 (xxii).

[61] s 51 (xxii).

[62] s 51 (xxiiiA).

[63] s 51 (xxvi).

[64] s 51 (xxix).

[65] s 107; Attorney-General v Colonial Sugar Refining Co. Ltd (1913) 17 CLR 644, 653.

[66] For a discussion of the cross-vesting scheme and its future see paras 15.26-41.

[67] Attorney-General’s Dept Australia’s Report under the Convention on the Rights of the Child Attorney-General’s Dept Canberra 1996, xxiv–xxviii.

[68] See ch 5.

[69] See para 5.12.

[70] See ch 5.