reporting child protection matters - Secretariat of National Aboriginal ...

section Dreporting child protection mattersIslander child and family welfare service. SNAICC believes specialist services andprograms need to be developed in all regions around the country to provide a relevantand localised service to Aboriginal and Torres Strait Islander children and families. Thework of the original AICCA services has demonstrated that localised Aboriginal andTorres Strait Islander specific services are in the best position to understand and respondto the needs of local families and children. They can provide a bridge between welfareauthorities and families to secure the best outcomes for children.The role of AICCAs todayThe aim of the AICCAs has always been to support Aboriginal and Torres Strait Islanderfamilies to raise happy, healthy, proud, strong children – who will take pride in theircultural heritage and identity.Whilst each AICCA service or other specialist Aboriginal and Torres Strait Islander childand family welfare agency is unique all of them would provide at least one of the followingservices for families:• Recruitment, training and ongoing support of Aboriginal and Torres Strait Islanderfoster carers to support children who need to be placed in out of home care• Placement, cultural support and supervision for children in foster care, out ofhome care or kinship care• Provision of support and assistance to families who have voluntarily taken on thecare of other Aboriginal or Torres Strait Islander children from their community or kin• Link up programs for members of the Stolen Generations and others searchingfor their family connections• Family reunification services for children with experience of out of home care• Court advocacy and support for families in relation to child protection mattersin order to determine the best interests of children• Emergency relief and youth accommodation services• Support services to prevent breakdown in Aboriginal and Torres Strait Islanderfamilies• Parenting and family support programs including family preservation andcounseling• Assisting families with referrals to other support services including health,education, domestic violence and legal services• Family group homes and short term care for families and children in crisis• Community awareness campaigns on the rights and needs of children and families• Cross-cultural awareness advice and training to non-indigenous agencies andgovernment departments• Cultural activities and programs for children and families• Activities for NAIDOC and National Aboriginal and Islander Children’s Day60 Through Young Black Eyes 2007

section Dreporting child protection mattersA main objective of AICCA services is to support families, keep families together, reducethe need for children to be removed and ensure that children are kept close to family –and within their Aboriginal and Torres Strait Islander community – if they are removed.The specific role and responsibilities of each AICCA in child protection varies from stateto state, but typically includes providing community and family input into decisionsregarding the welfare of children.This can include:• Being informed by the state/territory department of any child abuse or neglectinvestigations involving Aboriginal and Torres Strait Islander children andpossibly being present to assist families when investigations take place• Providing advice to the relevant court on the best interests of the child beforecare and protection orders are issued• Providing advice to the state/territory department on the most appropriateoptions for placing a child or children if it has been decided they need to beremoved from home for their protection (the final decision regarding where achild is placed is usually the responsibility of the court or department).• Assisting states and territories to adhere to the Indigenous Child PlacementPrinciple• Supervising and monitoring placements to ensure children are properly caredfor when they are in out of home care• Administering foster care payments• Providing on-going advice to the department on the long term interests ofchildren in care and options for family reunification• Providing policy advice to governments on priorities for improving the childprotection systemThe role of AICCAs does not include:• Acting as the contact point for formal notification of possible cases of childabuse or neglect• Investigating possible cases of child abuse or neglect• Issuing care and protection orders• Approving, endorsing or making decisions to remove children from theirfamiliesIndigenous Child Placement PrincipleOne of the first and most important changes the AICCAs and SNAICC secured in relationto child protection was the development and agreement by all states and territories to theAboriginal Child Placement Principle, now referred to as the Indigenous Child PlacementPrinciple.62 Through Young Black Eyes 2007

section Dreporting child protection mattersThe principle ensures that if an Aboriginal and Torres Strait Islander child is removedfrom home then their placement must adhere to a set of priorities. These priorities wereestablished to serve in the best interest of the child and their needs including theircultural, spiritual, emotional and mental wellbeing.As was established during the Human Rights and Equal Opportunity Commissioninquiry into the Stolen Generations, the forced removal of Aboriginal and Torres StraitIslander children and their deliberate assimilation into another community was a form ofgenocide.Genocide is not only the mass killing of a people. The essence of genocideis acting with the intention to destroy the group, not the extent to which thatintention has been achieved. A major intention of forcibly removing Aboriginaland Torres Strait Islander children was to absorb, merge or assimilate them, soAborigines as a distinct group would disappear. Authorities sincerely believedassimilation would be in the best interests of the children, but this is irrelevant toa finding that their actions were genocidal.The aim of the Indigenous Child Placement Principle is to prevent the culturallydestructive practice of Aboriginal and Torres Strait Islander children being removed fromhome and placed long term with non-Aboriginal families.The principle replaced the racist policies which gave rise to the Stolen Generations, andit sets out the following priorities for the placement of children who have been removedfrom their families.Preferred placement of Aboriginal and Torres Strait Islander children is to be:• With the child’s extended family• Within the child’s Aboriginal and Torres Strait Islander community or group• With another Aboriginal and Torres Strait Islander family, where culturallyappropriate• Where no other option is available, with a non-Indigenous familyWhere an Aboriginal and Torres Strait Islander child is placed as a last resort with anon-Indigenous family, an AICCA may be involved in supervising the placement to ensurethat the child is able to maintain links with their people and culture.All states and territories have accepted the principle as either law or policy. However upto 25% of Aboriginal and Torres Strait Islander children in Australia placed in out-of-homecare are placed with a non-Indigenous family. It is clear then, that whilst the IndigenousChild Placement Principle has been accepted by all states and territories, significantchanges to child welfare practice are required to improve adherence to the principle.Through Young Black Eyes 2007 63

section Dreporting child protection mattersThis material below is an edited extract from AIHW report, Child Protection Australia 2005–06,Australian Institute of Health and Welfare Canberra AIHW Cat. No. CWS 28 CHILD WELFARESERIES Number 40. For more detailed information about child protection statistics and policyfor each state and territory access the full version of the AIHW report at http://www.aihw.gov.au/publications/cws/cpa05-06/cpa05-06.pdfChild protection overviewLegal responsibility for child protectionChild protection is the responsibility of the community services department in each stateand territory. Children who come into contact with these departments for protectivereasons include those:• Who are suspected of being, have been, or are being abused, neglected orotherwise harmed• Whose parents cannot, or are unable to, provide adequate care or protectionThe community services departments provide assistance to these children and theirfamilies through the provision of, or referral to, a wide range of services. Some of theseservices are targeted specifically at children (and their families) in need of protection,others are available to a wider section of the population and attempt to deal with a broadrange of issues.The (four) areas of the child protection system for which national data are collected are:• Child protection notifications, investigations and substantiations• Children on care and protection orders• Children in out-of-home care• Supported accommodation and assistance servicesThere are no data at the national level on children who are referred to or who accessother services for protective reasons.Reporting of child protection mattersCurrently, all states and territories have legislation requiring the compulsory reporting tocommunity services departments of child abuse or neglect. The breadth of professionalsand organisations mandated to report varies across the jurisdictions e.g. in W.A. certaingroups of workers in specific circumstances are mandated to report, whilst in the N.T.anyone who has reason to believe that a child may be abused or neglected must reportthis to the appropriate authority. The types of child protection matters that are reportedalso vary across jurisdictions.In addition to requirements under state and territory legislation, Family Court staff arealso required under the Family Law Act 1975 to report all suspected cases of child abuse.64 Through Young Black Eyes 2007

section Dreporting child protection mattersFig 1.1 The child protection processReports to communityservices departmentConcerns about children andyoung people (intake)Refer to another agencyFamily support issue Child protection notification No further actionAssessment / referral tofamily support servicesInvestigationNot investigatedSubstantiationSubstantiationNot substantiatedDecision-making process, eg, case planning,family conferencesOther children inneed of careCare and protectionorderOut-of-home careNo further actionNote: Family support services can be provided at any point in the process. A child mayalso be placed on a care and protection order or be taken into out-of-home careat any point. Shaded boxes are items for which national data are collected.66 Through Young Black Eyes 2007

section Dreporting child protection mattersprotective action is necessary or possible. An exception to this is Queensland, where allnotifications require an investigation and assessment response.An investigation is the process whereby the community services department obtainsmore information about a child who is the subject of a notification, to assess the degreeof harm or risk of harm for the child.After an investigation is finalised, a notification is classified as ‘substantiated’ or‘not substantiated’. A notification will be substantiated where it is concluded afterinvestigation that the child has been, is being, or is likely to be, abused, neglectedor otherwise harmed. All jurisdictions substantiate situations where children haveexperienced significant harm from abuse and neglect through the actions of parents.Some jurisdictions also substantiate on the basis of the occurrence of an incident ofabuse or neglect, independent of whether the child was harmed, and others substantiateon the basis of the child being at risk of harm occurring.Care and protection orders and out-of-home careAt any point in this process the community services department can apply to the court toplace the child on a care and protection order. Recourse to the court is usually a last resortwhen supervision and counselling are resisted by the family, where other avenues for theresolution of the situation have been exhausted, or where removal of a child from homeinto out-of-home care requires legal authorisation. In some jurisdictions, for example, allchildren who are placed in out-of-home care must be on an order of some kind.Children can also be placed on a care and protection order and/or in out-of-home carefor reasons other than child abuse and neglect; for example, in situations where familyconflict is such that ‘time-out’ is needed, or a child is a danger to themselves, or wherethe parents are deceased, ill or unable to care for the child.Important differences among states and territoriesThere are some important differences between jurisdictions in policies and practices inrelation to child protection. The data from different jurisdictions therefore should not beused to measure the performance of one jurisdiction relative to another.One of the main differences is in the policy frameworks used by states and territories inrelation to notifications. In W.A. reports with concerns about children are screened bysenior staff, and may be the subject of an interim assessment if it is not clear from thereferral information that a child has experienced, or is likely to experience, maltreatmentwarranting a statutory child protection response. The assessment informs the mostappropriate response – statutory child protection (i.e. treat as if a notification), familysupport or no further action. Many reports are therefore not counted as child protectionnotifications, therefore the rates of notifications and substantiations are lower than inother jurisdictions.In Victoria, on the other hand, the definition of a ‘notification’ is very broad and includesreports that may not be classified as a notification in other jurisdictions. With theThrough Young Black Eyes 2007 67

section Dreporting child protection mattersenactment of the Children, Youth and Families Act 2005 in 2007, this process will changeto receipt of a ‘report’ which will then be classified into a child wellbeing report or aprotective intervention report.Other states and territories have policies between these two extremes. For example, S.A.and Queensland screen reports and may refer some to other agencies or provide familysupport services rather than a child protection notification response. In 2002, the A.C.T.screened reports similarly to S.A., but in 2003 the definition was changed to incorporateall contacts regarding concerns for children as child protection reports. The screeningprocess used in SA, however, does not appear to be as stringent as that used in W.A.In Tasmania, all reports to the department have been recorded as a notification since2003–04, however, before that date, the system for processing notifications in Tasmaniawas similar to WA. In NSW, all reports classified as ‘child protection’ reports arecategorised and receive a ‘risk of harm’ assessment to determine the appropriate action.Only reports of harm or risk of harm are included in this report.Other differences between jurisdictions are also worth noting:• In some jurisdictions, such as N.S.W., reports to the department relating toabuse by a stranger may be classified as a notification, but in other jurisdictionsthey are not.• Some jurisdictions substantiate the harm or risk of harm to the child, andothers substantiate actions by parents or incidents that cause harm. Infocusing on harm to the child, the focus of the child protection systems inmany jurisdictions has shifted away from the actions of parents towards theoutcomes for the child.Whilst differences between states and territories affect the comparability of the data, thedifferences between jurisdictions are greatest in relation to child protection notifications,investigations and substantiations.Changes in child protection policies and practicesChild protection policies and practices are continually evolving. These changes impacton the numbers of children in the child protection systems in different ways, so trends inchild protection numbers should be interpreted carefully.Over the last decade, it has been increasingly recognised that many reports to childprotection authorities are about situations in which parents are not coping with theirparental responsibilities. The responses of child protection authorities have becomemore focused on helping parents and more resources have been directed towards familysupport services in many jurisdictions.There has also been an increasing focus on early intervention services, which are seen tobe effective in reducing the need for more intrusive child protection interventions at laterstages. Cross-departmental strategies have been introduced in a number of jurisdictions,such as Families First in N.S.W., Family Support Innovation Projects (now known as ChildFIRST) in Victoria, Children First Framework in W.A., and Referral for Active Intervention68 Through Young Black Eyes 2007

section Dreporting child protection mattersin Queensland. These strategies attempt to coordinate service delivery to families andprovide better access to different types of children’s and family services.The definition of child abuse and neglect has broadened over the last decade resultingin more notifications and substantiations. The focus in many jurisdictions has shiftedaway from narrowly defined incidents of child abuse and neglect towards a broaderassessment of whether a child or young person has suffered harm, in order to assessthe child’s protective needs.Many jurisdictions have also introduced options for responding to the less serious reportsthrough family support services, rather than formal investigation, leading to substantialdecreases in the numbers of investigations and substantiations.Other changes include the introduction of structured risk assessmenttools to help workers identify children in high-risk circumstances, todetermine what services are necessary for the child and the family andto document the basis for decisions and provide some consistency ofresponse. Centralised intake systems have been introduced in somejurisdictions to increase the consistency of departmental responses.More recently departments responsible for child protection and supportservices have been concerned about rising rates of re-notificationsand re-substantiations. The Victorian Department of Human Servicesundertook research in their child protection system and found thatunderlying features such as low income, substance abuse, mental healthissues and the burdens of sole parenting were complex and chronic,that the child protection system often did not effectively deal with theseproblems and many children were subject to re-notifications and re-substantiations. Thereport noted that helping families to deal with these problems required more sustainedand less intrusive support. It highlighted the need for strengthened prevention and earlyintervention as well as improved service responses for children and young people withlonger-term involvement in the child protection system.For children on care and protection orders, the current policy emphasis is on keepingchildren in the family. Specialist family preservation services have been established inmany jurisdictions that seek to prevent the separation of children from their families as aresult of child protection concerns, or to reunify families where separation has occurred.Victoria in particular has established a number of these services.There has been a push in some jurisdictions for greater permanency for children unableto live with their parents, through either adoption or long-term parenting orders. In 2001,NSW introduced legislation that allows for adoption as a placement option for children.This legislation also introduced a Sole Parental Responsibility Order that provides anintermediate legal status between fostering and adoption. A number of other jurisdictionshave similar orders, including the Victorian Permanent Care Order 1992 and the WAProtection Order (Enduring Parental Responsibility) 2006.Through Young Black Eyes 2007 69

section Dreporting child protection mattersCare and protection ordersChildren who are in need of care and protectionIf a child has been the subject of a child protection substantiation, there is often a needfor child protection and support services to have continued involvement with the familyand protect the child through appropriate support services to the child and family. Wherefurther intervention is required, the department may apply to the court to place the childon a care and protection order.Recourse to the court is usually a last resort e.g. where supervision and counsellingare resisted by the family or where removal of the child to out-of-home care needs legalauthorisation. However, not all applications for an order will be granted.Fewer children are placed on a care and protection order compared to the number subjectof a substantiation. The proportion of children who were the subject of a substantiation in2004–05 and placed on a care and protection order within two months, ranged from 16%in Queensland to 56% in the N.T. The variations between jurisdictions are likely to reflectthe differences in child protection policies and in the types of orders available.State and territory child protection and support services may also need to assumeresponsibility for children and place them on a care and protection order for reasons otherthan a child protection substantiation e.g. where there is family conflict and ‘time out’ isneeded, where there is an irretrievable breakdown in the relationship between the child andparents, or where the parents are unwilling or unable to adequately care for the child.Each state and territory provides a definition in legislation of ‘in need of care andprotection’. In some states and territories, this covers a wide range of factors such astruancy or homelessness. In other states, such as Victoria, the legislation defines theneed for care and protection more narrowly to refer to situations where the child hasbeen abandoned or where the parent(s) are unable to protect the child from significantharm. The new Victorian legislation, the Children Youth and Families Act 2005, explicitlyrecognises that significant harm to a child can result from a single act or omission, orcumulatively from a series of acts or omissions.The legislation in each jurisdiction provides for action that can be taken if a child is foundto be in need of care and protection. Although the legislation provides the frameworkwithin which departments must operate, there are factors that affect the decision ofdepartmental officers to apply for a care and protection order e.g. the different policiesand practices of the states and territories, the characteristics of the child and the family,previous encounters of the child or family with child protection and support services, andthe availability of alternative options.The Children’s CourtIn most jurisdictions, applications for care and protection orders by the relevantdepartment are made to the Children’s Court. In S.A., applications are made to theYouth Court, and in the N.T. to the Family Matters Court. Some applications may also bebrought before the Family Court, or the state or territory Supreme Court.70 Through Young Black Eyes 2007

section Dreporting child protection mattersTypes of care and protection ordersCare and protection orders are grouped here into three categories:1. Guardianship or custody orders/administrative arrangementsGuardianship orders involve the transfer of legal guardianship to an authoriseddepartment or individual. These orders involve considerable intervention in the child’slife and that of the child’s family, and are a last resort. Guardianship orders convey to theguardian responsibility for the welfare of the child e.g. regarding the child’s education,health, religion, accommodation and financial matters. They do not necessarily grant theright to the daily care and control of the child, or the right to make decisions about thedaily care and control of the child, which are granted under custody orders.In previous years, guardianship orders generally involved the transfer of both guardianshipand custody to the department, with the head of the state or territory child protectionand support services becoming the guardian. More recently, several jurisdictions haveintroduced options for transferring guardianship to a third party, for example in Victoria’suse of Permanent Care Orders. Under the new legislation introduced in N.S.W., thesetypes of orders relate to ‘parental responsibility’ rather than ‘guardianship’ and canbe issued to individuals as well as to an officer of the state. In W.A. under legislationimplemented on 1 March 2006, the concept of ‘guardianship’ has been replaced with‘parental responsibility’ which means all the duties, powers, responsibilities and authoritywhich, by law, parents have in relation to children.Protection orders (time limited) and protection orders (until 18) confer parentalresponsibility to the chief executive officer of the department, while protection order(enduring parental responsibility) confers parental responsibility to a third party.Custody orders generally refer to care and protection orders that place children in thecustody of a third party. These orders usually involve child protection staff (or the personwho has been granted custody) being responsible or the day-to-day requirements of thechild while the parent retains guardianship. Custody alone does not bestow responsibilityregarding the long-term welfare of the child. In N.S.W. under the new legislation, thestate can hold parental responsibility, but the authorised carer has the power to makedecisions about the daily care and control of the child. This category also includes thoseadministrative arrangements with departments that have the same effect as a court orderof transferring custody or guardianship. These are legal arrangements, but not all statesand territories have such provisions in their legislation.2. Supervisory ordersThis category includes supervisory and other court orders that give the departmentsome responsibility for the child’s welfare. Under these types of orders, the departmentsupervises the level of care provided to the child. Such care is generally provided byparents and the guardianship or custody of the child is not affected. They are thereforeless interventionist than guardianship or custody orders. This category also includesundertakings which are voluntary orders regarding the care or conduct of the child.These orders must be agreed to by the child, and the child’s parents or the person withwhom the child is living.Through Young Black Eyes 2007 71

section Dreporting child protection matters3. Interim and temporary ordersThese generally provide for a limited period of supervision and/or placement of a childand can include applications to the court for care and protection orders that, in effect,may be very similar to a finalised custody order while proceedings take place. Thesetypes of orders vary considerably between states and territories.State and territory differencesThere are large variations across states and territories in the types of care and protectionorders that can be issued. Some of the major differences between jurisdictions, andrecent changes to care and protection orders within jurisdictions, are:• In W.A., the Children and Community Services Act 2004 enables the Children’sCourt to make four types of protection orders according to the needs andcircumstances of the child or young person: Protection Order (supervision),Protection Order (time limited), Protection Order (until 18) and Protection Order(enduring parental responsibility). This system has been in place since 1 March2006. Previously, children who were the subject of an application to the courtfor a care and protection order seeking guardianship were counted in thecategory ‘interim and temporary orders’.• Orders that grant permanent guardianship and custody of a child to a thirdparty are issued only in some jurisdictions. In Victoria, the Permanent CareOrder was introduced in 1996–97 and is included in data collections in thecategory ‘guardianship and custody orders’. S.A. and the N.T. also haveprovisions for the transfer of guardianship to a third party. N.S.W. has recentlyintroduced a similar type of order, the Sole Parental Responsibility Order, whichwill also be included in the national data.Detailed information on the care and protection orders applicable in your state andterritory should be obtained from your local AICCA or your state/territory communityservices/welfare department. Refer to the directory Section E below for contact details.72 Through Young Black Eyes 2007

section Dreporting child protection mattersMandatory reporting of alleged child abuse or neglectReport prepared by The National Children’s and Youth Law Centre.This section provides a brief guide to workers, who, because of their professions maycome into contact with children who may suffer abuse or neglect, as to their legalobligations regarding mandatory reporting in each state and territory.SNAICC gratefully acknowledges this work by The National Children’s and YouthLaw Centre (NCYLC), which is the only Australian national community legal centrefor children and young people. The intention of the centre is to provide advocacy,education and information services for Australia’s children and young people. Thetouchstone of the centre’s efforts is the United Nations Convention on the Rights ofthe Child and its mandate in promoting understanding and adherence to children’srights as fundamental human rights. The NCYLC seeks to empower children and youngpeople, providing them with the informational and support tools necessary to assistthem to make informed personal choices. Website: www.ncylc.org.au/Child abuse reporting lines are listed in Section E on page 95.Background to mandatory reportingMandatory refers to the legal obligation on certain professionals to report to either police orchild protection authorities, concerns, suspicions or beliefs that certain children with whomthey have contact may be suffering some form of abuse, mistreatment or neglect.Mandatory reporting has been the focus of significant debate in Australia. The argumentto impose mandatory reporting requirements rests on the fact that some people, by virtueof their occupations, have special knowledge about the welfare of children. Advocates ofmandatory reporting assert that it is likely to increase the protection available to childrenas part of the larger scheme of child abuse prevention.All states and territories except W.A. have legislation mandating reporting of childmaltreatment, abuse or neglect to community service departments. In most statesand territories, there are several professions involved with children that are mandatedto report, although in the N.T. anyone who has reason to believe that a child is beingabused must report it. Whilst W.A. does not have mandatory reporting, it has guidelinesfor certain types of professionals to report maltreatment.Generally, those mandated to report are the people who, in the course of their profession,see children on a regular basis, such as teachers, doctors, health and welfare workers.To lodge a report, the mandated person needs to either reasonably suspect, reasonablybelieve, or know that any form of violence, abuse, neglect or maltreatment is occurring,or is likely to occur. Then, they must share the details with the relevant governmentdepartment. Those who divulge concerns of violence against children are protectedfrom criminal and civil liability if the report is based on reasonable grounds. If a notifier’sidentity were disclosed automatically, the resultant lack of trust in that person wouldprevent them from accessing information about children in the future. It is crucial toThrough Young Black Eyes 2007 73

section Dreporting child protection matterspreserve an element of anonymity (except in some circumstances) to be able better tomonitor children’s domestic situations.No legislation requires that is it necessary to prove that the abuse occurred, is occurring,or will occur. It is sufficient that the notifier either has reasonable suspicion or reasonablebelief depending on the details of the reporting requirements of the state/territory.Who is mandated to report?Reports of actual or alleged child maltreatment must be made by certain classes ofpeople to their assigned child protection authority.However, if there is an immediate and life-threatening concern that cannot bedealt with in time by the respective authority call 000 and report the situation asan emergency.STATE/TERRITORYAustralian Capital TerritoryMANDATED PARTIESDoctors, dentists, nurses, enrolled nurses, midwives,police officers, teachers, school, any personcoordinating or monitoring the provision of home-basedcare on behalf of a family-day-care scheme licensee,public advocates, the official visitor, a prescribedperson, a person caring for a child at a child care centrecounsellors, public servants working in the child welfarefield and licensed child care providers .New South WalesA person who, in the course of his or her professionalwork or other paid employment delivers health care,welfare, education, children’s services, residentialservices, or law enforcement, wholly or partly, tochildren, and a person who holds a management positionin an organisation the duties of which include directresponsibility for, or direct supervision of, the provisionof health care, welfare, education, children’s services,residential services, or law enforcement, wholly or partly,to children.Northern TerritoryQueenslandAny personProfessionals are required to notify all suspectedcases of physical, psychological or emotional abuseor neglect, as well as sexual abuse or exploitation,to the Director-General, Queensland Health. Schoolprincipals and teachers are not mandated by legislation,but Education Queensland policy requires teachers toreport suspected cases to authorities. Department of74 Through Young Black Eyes 2007

section Dreporting child protection mattersFamilies officers and licensed care officers are requiredto report suspected cases of harm to children who are inresidential care.South AustraliaMedical practitioners, registered enrolled nurses,pharmacists, dentists, psychologists, police, probationofficers, social workers, teachers, family-day-careproviders, ministers of religion and employees of, orvolunteers in, government departments or organisationsformed for religious or spiritual purposes, agenciesor local government or non-government agenciesthat provide health, welfare, education, child care orresidential services wholly or partly for children.TasmaniaMedical practitioners, registered nurses, probationofficers, police officers, child welfare officers, guidanceofficers, dentists, dental therapists or dental hygienists,registered psychologists within the meaning ofPsychologists Registration Act 2000, principals andteachers in any educational institution (including akindergarten), child care providers, any person employedor who is a volunteer in a government agency thatprovides health, welfare, education, child care orresidential services wholly or partly for children.VictoriaMedical practitioners, nurses, police, registeredpsychologists, any person registered as a teacher underthe Education and Training Reform Act 2006 or hasbeen granted permission to teach under The Act, theprincipals of government or non-government schoolswithin the meaning of the Education and Training ReformAct 2006 a person with a post-secondary qualificationin youth, social or welfare work who works in the health,education or community or welfare services field,probation officers, youth justice workers and youthparole officers.Western AustraliaAny person may report their concern, although there arecurrently no mandatory reporting requirements for anyprofessionals/individuals. The W.A. system is based onthere being a duty of care owed by those involved in theprovision of health, welfare and police services, whichprovides for a moral duty to report any concerns. Thereare no guidelines outlining the reporting requirementsand protections. Assistance and advice is availablefrom the Family and Children’s Service section of theDepartment of Community Development.Through Young Black Eyes 2007 75

section Dreporting child protection mattersDo I tell the family?There is no obligation to inform the child’s family about the report. However, there areseveral matters for you to consider about whether you inform the family of your actionsfor the child.• Many families are shocked when they first hear of the notification, andoften respond by trying to guess the notifier. Whether they guess correctlyor incorrectly, there is likely to be a sense of betrayal. It is found that therelationship with the client is more likely to be saved if the intention to notifyand the reasons for doing so are discussed.• Protection of the child is paramount. It is important to ensure the child isnot exposed to an increased risk of harm by warning the offender or familymembers of the report. Also, notification might jeopardise your safety, which isclearly inadvisable.• Not all matters will be investigated; it is pointless causing undue distress bytelling the family, when no action is likely to be taken.• If allegations are serious and possibly criminal, the evidence may becomecontaminated by your intervention in this way.Therefore it is recommended that you contact the relevant community service departmentbefore making any decision to inform the family of the notification.When must I make a report?• Reports of alleged child maltreatment must be made to the relevantdepartment as soon as possible.• The grounds differ between the states and territories in their requirementseither for belief, suspicion or knowledge of abuse.• The basis for the report is the same in all states and territories, in that theymust all be founded on reasonable grounds (See below the section titledReasonable Grounds page 78–81)• In all states and territories (except the N.T.) the suspicion, belief or knowledgeto be reported is that which arises as a result of carrying out official duties,rather than information gathered from one’s private life.• In each case the circumstances justifying the report will be for the protectionof the child based on maltreatment that has already occurred, is still occurringor is likely to occur in the future. There are also a range of penalties for failingto report concerns, or where concerns are not reported in good faith (inQueensland, a mandated notifier is excused from the duty to report where itwould be self-incriminating.)76 Through Young Black Eyes 2007

section Dreporting child protection mattersSTATE/TERRITORY GROUNDS FOR PENALTY FOR NOtNOTIFICATIONrePORTINGAustralian Capital Territory Reasonable suspicion 50 penalty units and/orup to 6 monthsimprisonmentNew South Wales Reasonable suspicion 200 penalty unitsNorthern Territory Reasonable belief 200 penalty unitsQueensland Suspicion (regarding 20 penalty unitschildren in residentialcare only)South Australia reasonable suspicion Max penalty $10,000 fineTasmania reasonable suspicion/ Fine not exceeding 20Reasonable belief/knowledge penalty unitsVictoria reasonable belief 10 penalty units• Reasonable suspicion means that you think that it is more likely than not thatthe child has been, or is likely to be, maltreated.• Reasonable belief means that you should conclude, based on reasonablegrounds, that the child has been or is likely to be maltreated.• Knowledge means you have first hand details from personal experience orinformation from the child that maltreatment has or is likely to occur.Through Young Black Eyes 2007 77

section Dreporting child protection mattersWhat must I report?STATE/TERRITORYAustralian Capital TerritoryNew South WalesNorthern TerritoryQueenslandSouth AustraliaTasmaniaVictoriaMALTREATMENT TO BE REPORTEDSexual abuse or non-accidental physical injuryAny incident or circumstance that places a child or youngperson “at risk of harm” - physical/psychological needsare not being met, medical care is not provided, physicalor sexual abuse or ill-treatment, the child lives in a housewhere there has been domestic violence and as a resultthe child is at serious risk of physical/psychological harm.Maltreatment (suffered or suffering maltreatment)Physical, psychological, emotional abuse or neglect,sexual abuse or exploitationMurder, manslaughter, injury, abuse, neglect includingsexual, physical or emotional abuse or neglect of thechild.Abuse or neglectAny incident or circumstance that demonstrates a child“Is in need of protection” – abandoned, parents are deador incapacitated, has suffered, is suffering or is likely tosuffer significant harm from emotional, psychological orphysical injury or sexual abuse or physical developmenthas been, is or is likely to be significantly harmed.What are ‘reasonable grounds’?• Reasonable grounds relate to the foundation of the report made to the relevantdepartment.• The basis of any report must stem from information derived from your ownobservations of the child’s physical condition or behaviour, something that thechild might tell you, or information gained from any other person.• In order to report any concerns you might have, there is a need to recogniseand understand abuse and neglect. In most situations, abuse is not an isolatedevent, but a pattern of behaviour occurring over a period of time.• Abuse falls into four categories: physical, emotional, sexual and neglect.Although each is independent, children may suffer a combination of thesecategories.• There are an array of indicators providing insight into possible abuse. Theseare outlined in Section B (pages 31–33) and Section C (pages 48–50).78 Through Young Black Eyes 2007

section Dreporting child protection mattersWhat happens next?InvestigationsNot every report will be investigated. The critical factors in deciding whether a matterwill be investigated are that:• The alleged incidents have caused serious harm to the child;• The child is likely to suffer further harm without the intervention of the statutoryauthority; and• There are sufficient resources available to ensure that the matter can be fullyand properly investigated. Investigations may be delayed until such time asadequate resources become available.What protection do I have?Confidentiality and privacy• Whilst confidentiality and privacy require protection, they must not override thesafety of children.• It is no defense for failure to report that “it was more important to protect clientconfidentiality.”• However, it is necessary to respect the privacy of the child and family, sosharing of information should be strictly on a need to know basis.• Notification made to the relevant department in compliance with thereasonable grounds for making the report in good faith, and in all honesty, willnot incur civil or criminal liability, and will not amount to a breach of confidence,professional conduct, etiquette or ethics.Disclosure of notifier’s identity• It is not standard practice of any state or territory to seek the identity of theperson who made the report, thereby providing anonymity to the notifier.• However, there are certain circumstances in the states and territories wherethe identity of the notifier may be disclosed, which are outlined below.Through Young Black Eyes 2007 79

section Dreporting child protection mattersSTATE/TERRITORYAustralian CapitalTerritoryNew South WalesGROUNDS FOR DISCLOSURENotifier gives permissionCourt deems the identity to be ofimportance to proceedings.Reports may be made anonymously; thusthere might not be an identity to disclose.However, if identity may be deduced it maybe disclose.Notifer consents Court deems theevidence to be of critical importance to theproceedings and omission would prejudicethe administration of justicePENALTY FORUNAUTHORISEDDISCLOSURENo penaltyprovidedNo penaltyprovidedNorthern Territory No legislative provision No penaltyprovidedQueenslandIn the course of another performingfunctions under a child protection lawNo penaltyprovidedSouth AustraliaTo the ombudsman for conduct of aninvestigation under the Ombudsman Act2001.To a Parliamentary Commission forAdministrative InvestigationsTo a Commissioner under The Act Evidencegiven in legal proceedings with the priorpermission of the court.Permission will be granted if the identity isof critical importance to proceedings andthere is a compelling reason in thepublicinterest, or the notifier consentsIn the course of official duties of anotherperson performing official dutiesNotifier gives permissionEvidence adduced with the court’spermission, who must be satisfied that theevidence is critical to the administration ofjustice In the course of official duties underThe Act to another person acting in thecourse of their official duties$5,00080 Through Young Black Eyes 2007

section Dreporting child protection mattersTasmaniaVictoriaNotifier gives permission.Court deems the evidence to be of criticalimportance to the proceedings andomission would prejudice theadministration of justice.Notifier chooses to inform the familyNotifier gives permission in writingCourt decides it is required to ensure thesafety/well being of the childCourt decides it is in the interests of justice.Fine not exceeding40 penalty points&/or for no longerthan 12months10 penalty unitsNote• It is recommended that you ensure your clients are aware of the mandatoryreporting requirements from the outset, so they understand the limits of yourconfidentiality and responsibilities.• It is not defense to the mandatory reporting rules that it breaches clientconfidentiality, as protection is more important than confidenceThrough Young Black Eyes 2007 81

section Dreporting child protection matterschild protection and mandatory reporting legislationList of applicable legislation from each state and territoryCommonwealthFamily Law Act 1975Australian Capital TerritoryChildren and Young People Act 1999New South WalesChildren (Care and Protection) Act 1987Children and Young Persons (Care and Protection) Act 1998QueenslandChild Protection Act 1999Public Health Act 2005South AustraliaFamily and Community Services Act 1972Children’s Protection Act 1993TasmaniaAlcohol and Drug Dependency Act 1968Children, Young Persons and Their Families Act 1997VictoriaChildren, Youth and Families Act 2005The Child Wellbeing and Safety Act 2007Western AustraliaChildren and Community Services Act 2004Northern TerritoryCommunity Welfare Act 1983It is anticipated that a new Care and Protection of Children Act will be passed in theN.T. by the end of 2007. Check the current legislation in force on www.nt.gov.au/dcm/legislation/current.html)82 Through Young Black Eyes 2007

section Dreporting child protection mattersLegislative definitions of ‘in need of care and protection’Each state and territory has legislation defining in what circumstances a child isconsidered to be ‘in need of care and protection’.The relevant section of legislation from each state and territory is included below.Legislation is almost constantly under review and subject to change. Up-to-datelegislation should be available from the department responsible for child protection ineach state and territory (see resource directory below for website details).New South WalesIn New South Wales, a child is defined under section 23 of the Children and YoungPersons (Care and Protection) Act 1998 as being at risk of harm if current concerns existfor the safety, welfare or well-being of the child or young person because of the presenceof any one or more of the following circumstances:(a)(b)(c)(d)(e)(f)The child’s or young person’s basic physical or psychological needs are notbeing met or are at risk of not being met,The parents or other caregivers have not arranged and are unable or unwillingto arrange for the child or young person to receive necessary medical care,The child or young person has been, or is at risk of being, physically orsexually abused or ill-treated,The child or young person is living in a household where there have beenincidents of domestic violence and, as a consequence, the child or youngperson is at risk of serious physical or psychological harm,A parent or other caregiver has behaved in such a way towards the childor young person that the child or young person has suffered or is at risk ofsuffering serious psychological harm,The child was the subject of a pre-natal report under section 25 and the birthmother of the child did not engage successfully with support services toeliminate, or minimise to the lowest level reasonably practical, the risk factorsthat gave rise to the report.Note: physical or sexual abuse may include an assault and can exist despite the factthat consent has been given.VictoriaIn Victoria, section 162 of the Children, Youth and Families Act 2005 (introduced inlate 2005) defines a child ‘in need of protection’ when:(a)The child has been abandoned by his or her parents and after reasonableinquiries the parents cannot be found and no other suitable person can befound who is willing and able to care for the child,Through Young Black Eyes 2007 83

section Dreporting child protection mattersb) The child’s parents are dead or incapacitated and there is no other suitableperson willing and able to care for the child,c) The child has suffered, or is likely to suffer, significant harm as a result ofphysical injury and the child’s parents have not protected, or are unlikely toprotect, the child from harm of that type,d) The child has suffered, or is likely to suffer, significant harm as a result ofsexual abuse and the child’s parents have not protected, or are unlikely toprotect, the child from harm of that type,e) The child has suffered, or is likely to suffer, emotional or psychological harm ofsuch a kind that the child’s emotional or intellectual development is, or is likelyto be, significantly damaged and the child’s parents have not protected, or areunlikely to protect, the child from harm of that type,f) The child’s physical development or health has been, or is likely to be,significantly harmed and the child’s parents have not provided, arrangedor allowed the provision of, or are unlikely to provide, arrange or allow theprovision of, basic care or effective medical, surgical or other remedial care.QueenslandIn Queensland, section 10 of the Child Protection Act 1999 (introduced in March 2000)defines a child ‘in need of protection’ as a child who:(a)(b)Has suffered harm, is suffering harm or has an unacceptable risk of sufferingharm; andDoes not have a parent able and willing to protect the child from harm.‘Parent’ is defined broadly in section 11 of the Act to include persons ‘having or exercisingparental responsibility for the child’ and includes a person who, under Aboriginal or TorresStrait Islander tradition or custom, is regarded as a parent of the child.‘Harm’ is defined in section 9 of the Act as ‘any detrimental effect of a significant natureon the child’s physical, psychological or emotional wellbeing’.Western AustraliaIn Western Australia s28 of the Children and Community Services Act 2004 defines whena child is ‘in need of protection’ as when:(a)(b)The child has been abandoned by his or her parents and, after reasonableinquiries the parents cannot be found and no suitable adult relative or othersuitable adult can be found who is willing and able to care for the child;The child’s parents are dead or incapacitated and, after reasonable inquiries,no suitable adult relative or other suitable adult can be found who is willingand able to care for the child;84 Through Young Black Eyes 2007

section Dreporting child protection matters(c)The child has suffered, or is likely to suffer, harm as a result of any one or moreof the following:(i)(ii)(iii)(iv)(v)Physical abuseSexual abuseEmotional abusePsychological abuseNeglectand the child’s parents have not protected, or are unlikely or unable to protect, thechild from harm, or further harm, of that kind; or(d)the child has suffered, or is likely to suffer, harm as a result of:(i)(ii)The child’s parents being unable to provide, or arrange the provision of,adequate care for the child; orThe child’s parents being unable to provide, or arrange the provision of,effective medical, therapeutic or other remedial treatment for the child.The law in W.A. will change with the commencement of amending legislation calledthe Children and Community Services (Mandatory Reporting) Amendment Bill 2006.Currently in draft form, the changes will require professionals in the areas of healthcare, welfare, education, children’s services, residential services and law enforcementto report a reasonable belief or suspicion of harm to children. Harm includes physical,sexual, emotional and psychological abuse as well as neglect. The identity of the notifierwill only be disclosed with their consent, in the course of performing official duties underthe act or with leave granted by the court for the purpose of adducing evidence.South AustraliaIn South Australia, under section 37 of the Children’s Protection Act 1993, anapplication may be made to the Youth Court when the Minister is of the opinion that:(a)(b)(c)The child is at risk and an order should be made to secure the child’s care andprotection; orDisruption of existing arrangements for the child would be likely to cause thechild psychological injury and it would be in the best interest of the child forthe arrangement to be the subject of a care and protection order, orThe minister knows or suspects on reasonable grounds that the child is at riskas a result of drug abuse by a parent or guardian or other person and that thecause of the child being at risk is not being adequately addressed.For the purposes of section 6(2) of the Act, a child is at risk if:(a)There is a significant risk that the child will suffer serious harm to his or herphysical, psychological or emotional wellbeing against which he or she shouldhave, but does not have, proper protection; orThrough Young Black Eyes 2007 85

section Dreporting child protection matters(b)(c)The child has been, or is being, abused or neglected; orA person with whom the child resides (whether a guardian of the child or not):(i)(ii)Has threatened to kill or injure the child and there is a reasonablelikelihood of the threat being carried out; orHas killed, abused or neglected some other child or children and thereis a reasonable likelihood of the child in question being killed, abused orneglected by that person; or(d)The guardians of the child:(i)(ii)(iii)Are unable to care for and protect the child, or are unable to exerciseadequate supervision and control over the child; orAre unwilling to care for and protect the child, or are unwilling toexercise adequate supervision and control over the child; orAre dead, have abandoned the child, or cannot, after reasonableinquiry, be found; or(e)(f)The child is of compulsory school age but has been persistently absent fromschool without satisfactory explanation of the absence; orThe child is under 15 years of age and of no fixed address.The Children’s Protection Act 1993 also covers the practice of female genital mutilationFor the purposes of the Act the following definitions of female genital mutilation areused: Under section 26A(1) female genital mutilation means:(a)(b)(c)(d)Clitoridectomy; orExcision of any other part of the female genital organs; orA procedure to narrow or close the vaginal opening; orAny other mutilation of the female genital organs, but does not include asexual reassignment procedure or a medical procedure that has a genuinetherapeutic purpose.Under section 26B(1) on the protection of children at risk of genital mutilation: if theCourt is satisfied that there are reasonable grounds to suspect that the child may beat risk of female genital mutilation, the Court may make orders for the protection ofthe child, for example, preventing a person from taking the child from the State, orrequiring that the child’s passport be held by the Court for a period specified in theorder or until further order or providing for periodic examination of the child to ensurethat the child is not subject to female genital mutilation.Part 5 of the Children’s Protection Act also states that family care meetings should beconvened in respect of the child if the Minister believes that a child is at risk and thatarrangements should be made to secure the child’s care and protection. The Ministercannot make an application for an order granting custody of the child or placing the childunder guardianship, before a family care meeting has been held unless satisfied that:86 Through Young Black Eyes 2007

section Dreporting child protection matters(a)(b)(c)(d)It has not been possible to hold a meeting despite reasonable endeavours todo so; orAn order should be made without delay; orThe guardians of the child consent to the making of the application; orThere is another good reason to do so.The department will consider taking court action for a care and protection order onlywhen no other intervention can safely protect a child who is at risk by definition of theAct. There are powers which the Youth Court may exercise when it finds that a child isin need of care and protection.New care and protection orders tend to be no longer than 12 months, although asecond or subsequent order can be granted to complete a reunification process. Thechild may then be placed under the guardianship of the Minister or such other personor persons the Court thinks appropriate, until 18 years of age.TasmaniaIn Tasmania, Section 42 of the Children, Young Persons and their Families Act 1997allows the Secretary to apply to the Court for a care and protection order. On theapplication of the Secretary, the Court may make a care and protection order if –(a) The Court is satisfied –(i)(ii)That a child is at risk; andThat a care and protection order should be made to secure the careand protection of the child; or(b) The Court is satisfied that –(i)(ii)(iii)Proper arrangements exist for the care and protection of a child (whetherpursuant to the Secretary approving the arrangements recommended ina decision of a family group conference or otherwise); andThe child would be likely to suffer significant psychological harm if thearrangements were to be disturbed; andIt would be in the best interests of the child for the arrangements to beincorporated in a care and protection order.Section 4 of the Act describes a child at risk if:(a)(b)The child has been, is being, or is likely to be, abused or neglected; orAny person with whom the child resides or who has frequent contact with thechild (whether the person is or is not a guardian of the child) –(i)(ii)Has threatened to kill or abuse or neglect the child and there is areasonable likelihood of the threat being carried out; orHas killed or abused or neglected some other child or an adult andthere is a reasonable likelihood of the child in question being killed,abused or neglected by that person; orThrough Young Black Eyes 2007 87

section Dreporting child protection matters(c)The child is an affected child within the meaning of the Family Violence Act2004; or(d) The guardians of the child are –(i)(ii)(iii)(iv)(v)(vi)Unable to maintain the child; orUnable to exercise adequate supervision and control over the child; orUnwilling to maintain the child; orUnwilling to exercise adequate supervision and control over the child;orDead, have abandoned the child or cannot be found after reasonableinquiry; orAre unwilling or unable to prevent the child from suffering abuse orneglect; or(e)The child is under 16 years of age and does not, without lawful excuse, attendschool regularly.For the purposes of the above, it does not matter whether the conduct that puts achild at risk occurred or, as the case requires, is likely to occur wholly or partly outsideTasmania.The words “abuse and neglect” means –(a)Sexual abuse; or(b) Physical or emotional injury or other abuse, or neglect, to the extent that –(i)(ii)The injured, abused or neglected person has suffered, or is likely tosuffer, physical or psychological harm detrimental to the person’swellbeing; orThe injured, abused or neglected person’s physical or psychologicaldevelopment is in jeopardy.If the Court adjourns the hearing of an application for a care and protection order, theCourt may also make an interim care and protection order under section 46 of the Act.An interim care and protection order may contain one or more of the following orders:(a)(b)An order requiring the child or a guardian of the child to do any specified thingor refrain from doing any specified thing;An order granting custody of the child to one or more of the following persons:(i)(ii)(iii)(iv)(v)A guardian of the child;A member of the child’s family;The chief executive officer of a non-government organisation thatprovides facilities for the residential care of children, or a person whoholds a position similar in nature to that of chief executive officer insuch an organisation;The Secretary;Any other person that the Court considers appropriate in thecircumstances;88 Through Young Black Eyes 2007

section Dreporting child protection matters(c) An order placing the child under the guardianship of the Secretary or one or 2other persons as the Court considers appropriate in the circumstances;(d)(e)(f)An order providing for access to the child;An order providing for the way in which a person who has custody orguardianship of the child under an order of the Court is to deal with mattersrelating to the care, protection, health, welfare or education of the child;Any other order the Court considers appropriate.Australian Capital TerritoryIn the A.C.T., section 156 of the Children and Young People Act 1999 states that a childis in need of care and protection if:(a)(b)He or she has been, is being or is likely to be, abused or neglected; andNo-one with parental responsibility for the child or young person is willing andable to protect him or her from suffering the abuse or neglect.A child or young person is in need of care and protection in the followingcircumstances:(a) If a person with whom the child or young person lives or is likely to live –(i)(ii)Has threatened to kill or injure the child or young person and there is areal possibility of the threat being carried out; orHas killed, abused or neglected a child or young person and there is areal possibility of the person killing, abusing or neglecting the relevantchild or young person; and no-one with parental responsibility for thechild or young person is willing and able to protect the child or youngperson;(b)(c)(d)No-one with parental responsibility for the child or young person (other thanthe chief executive) is willing and able to provide him or her with adequatecare and protection;If there is a serious or persistent conflict between the child or young personand the people with parental responsibility for him or her (other than the chiefexecutive) to such an extent that the care and protection of the child or youngperson is, or is likely to be, seriously disrupted;The people with parental responsibility for the child or young person (otherthan the chief executive) are –(i)(ii)(iii)Dead, have abandoned him or her or cannot be found after reasonableinquiry; orUnwilling or unable to keep him or her from engaging in self-damagingbehaviour; orSexually or financially exploiting the child or young person or unwillingor unable to keep him or her from being sexually or financially exploited;Through Young Black Eyes 2007 89

section Dreporting child protection matters(e) The child or young person is the subject of a child protection order in a Statethat is not being complied with.It does not matter whether conduct giving rise to the belief that a child or young personhas been, is being or is likely to be, abused or neglected occurred wholly or partlyoutside the A.C.T.Section 151 of the Act defines “abuse”, in relation to a child or young person as:(a)(b)(c)(d)Physical abuse; orSexual abuse; orEmotional abuse (including psychological abuse) if the child or young personhas suffered, is suffering or is likely to suffer in a way that has caused or iscausing significant harm to his or her wellbeing or development; orEmotional abuse (including psychological abuse) if:(i)(ii)The child or young person has been, is being, or is being exposed toconduct that is domestic violence under the Domestic Violence andProtection Orders Act 2001; andThe exposure has caused, is causing or is likely to cause significantharm to the wellbeing or development of the child or young person.Section 151 of the Act defines “neglect”, of a child or a young person, as a failure toprovide the child or young person with a necessity of life that has caused, is causingor is causing the child or young person significant harm to his or her wellbeing ordevelopment.Northern TerritoryIn the N.T., section 4(2) of the Community Welfare Act 1983 states that a child is in needof care where:(a)(b)(c)(d)(e)The parents, guardian/person having the custody have abandoned the childand cannot, after reasonable inquiry, be found; orThe parents, guardian/person having the custody are unwilling or unable tomaintain the child; orThe child has suffered maltreatment; orThe child is not subject to effective control and is engaging in conduct whichconstitutes a serious danger to their health or safety; orBeing excused from criminal responsibility under section 38 of the CriminalCode (being under ten years of age), the child has persistently engaged inconduct which is so harmful or potentially harmful to the general welfare of thecommunity, measured by commonly accepted community standards, as towarrant action under this Act for the maintenance of those standards.90 Through Young Black Eyes 2007

section Dreporting child protection mattersFor the purpose of the Community Welfare Act 1983, a child shall be taken to havesuffered maltreatment where they have suffered:(a)(b)(c)(d)(e)A physical injury causing temporary or permanent disfigurement or seriouspain or has suffered impairment of a bodily function or the normal reserveor flexibility of a bodily function, inflicted or allowed to be inflicted by aparent, guardian or person having the custody of the child, or where there issubstantial risk of the child suffering such an injury or impairment;Serious emotional or intellectual impairment evident by severe psychologicalor social malfunctioning measured by the commonly accepted standardsof the community to which the child belongs, whether a result of physicalsurroundings, nutritional or other deprivation, or the emotional or socialenvironment in which the child is living, or where there is a substantial risk thatsuch surroundings, deprivation or environment will cause such emotional orintellectual impairment;Serious physical impairment evidenced by severe bodily malfunctioning,whether a result of the child’s physical surroundings, nutritional or otherdeprivation, or the emotional or social environment in which the child is living,or where there is a substantial risk that such surroundings, deprivation orenvironment will cause such impairment;Sexual abuse or exploitation or where there is substantial risk of such abuseor exploitation occurring, and the child’s parents, guardians or persons havingcustody of the child are unable or unwilling to protect them from such abuseor exploitation; orFemale genital mutilation, where a female child shall be taken to have sufferedfemale genital mutilation where she:(i)(ii)Has been subjected, or there is substantial risk that she will be subjected, tofemale genital mutilation, as defined in section 186A of the Criminal Code;orHas been taken, or there is substantial risk that she will be taken,from the Territory with the intention of having female genital mutilationperformed on her.A Bill for new legislation to replace the N.T. Community Welfare Act 1983 has beenintroduced into the N.T. Legislative Assembly. It is anticipated that a new Care andProtection of Children Act will be passed by the end of 2007. It is likely that the newlegislation will not be enacted until operational arrangements are finalised. Until that timethe Community Welfare Act will remain in force. Interested persons should go to the NTGovernment legislation data base to check the current legislation that is in force, locatedat www.nt.gov.au/dcm/legislation/current.htmlThrough Young Black Eyes 2007 91

section Dreporting child protection mattersAge of ConsentThere differences between States and territories in relation to the age of consent for sexand for homosexual sex and heterosexual sex. The following is a summary of the laws ineach state and territory.STATE/TERRITORY HETEROSEXUAL HOMOSEXUALFEMALES MALES FEMALES MALESAustralian Capital Territory 16 16 16 16Other considerations: The law in the ACT is the same for heterosexual sexand homosexual sex. People aged between 10 and 16 yrs can legally havesex with another person as long as both consent and there is not more than2 years difference between them.New South Wales 16 16 16 16Northern Territory 16 16 16 16Queensland 16 16 16 18Other considerations: Homosexual sex. Males: Both males must be aged18 years or older. It is an offence for a male to have sex with another maleunder 18 years. Females: There is no law which applies specifically to sexualrelationships between two females.South Australia 17 17 17 17Other considerations: In South Australia the law is he same for heterosexualsex and homosexual sex. The law states that two people aged 16 years oldwho have sex together are not committing an offence.Tasmania 17 17 17 17Other considerations: The consent of a person against whom a crimeis alleged to have been committed is a defence to a charge of unlawfulintercourse with a young person under the age of 17 years if (a) at the timethe crime was allegedly committed that person was of or above the age of15 years and the accused person was not more than five years older thanthat person; or that person was of or above the age of 12 years and theaccused person was not more than three years older than that person.Victoria 16 16 16 16Other considerations: The law in Victoria is the same for heterosexual sexand homosexual sex. People aged between 10 and 16 yrs can legally havesex with another person as long as both consent and there is no more than2 years age difference between themWestern Australia 16 16 16 16Other considerations: A child under the age of 13 is incapable of consentingto sexual intercourse. The age of consent to sexual intercourse (homosexualand heterosexual) is 16. For a child between the ages of 13 and 16, it is adefence if the accused (if not in the position of authority) (a) believed onreasonable grounds that the child was of or over the age of 16 years; and (b)was not more than 3 years older than the child.92 Through Young Black Eyes 2007