History of child protection legislation

Prepared by Professor Shurlee Swain

Australian Catholic University

October 2014

ISBN 978-1-925118-60-5

Executive summary

This paper surveys the legislation relating to the out-of-home care of children. It identifies four chronological but overlapping waves of legislation. The first, beginning in the 1860s, documents the ways in which different jurisdictions structured their child welfare system, initially influenced by concerns around vagrancy, but later revised in the light of the child rescue movement. The second, dating from the 1860s, focuses on regulating care providers, establishing systems of inspection and regulations covering punishment and employment. The third concerns the ways in which legislation constructed the children’s parents, initially seeking to deter them from ‘foisting their children on the state’ but, from the 1880s, introducing measures designed to keep families together. The fourth covers legislation designed to deal with children seen as requiring special provision: child migrants, Aboriginal children, infants, and children with disabilities. The survey concludes that child welfare provision in Australia is better described as a patchwork than a coordinated model. Poorly resourced and often slow to respond to international developments in the field, it left children exposed to a system which had more interest in economy and deterrence than in ensuring their rights and best interests.

Scope and sources

This document provides a survey of the legislative responses concerning children and institutions across Australia, from European colonisation to the first decade of the 21st century. Although isolated Acts were passed in different jurisdictions in the first half of the 19th century, it was not until the 1860s that the colonies systematically engaged with this issue. This engagement began with the construction of a regime of child removal which survived largely unchallenged until the beginnings of deinstitutionalisation in the 1970s. This paper focuses on the period 1860 to 1990, although the impact and aftermath of deinstitutionalisation from the 1990s on is briefly touched on at various points.

Legislation was as often a response to changed practice as it was the impetus for policy change, but its timing nevertheless gives some indication of changing attitudes to children, and particularly poor children, over that time. The full list of legislation is included in Appendix 1. It was compiled from the Find & Connect Web Resource1, augmented by a detailed reading of some of the most important pieces of legislation, and the major scholarly histories of child welfare in Australia.2 It has also drawn on the knowledge of the state-based historians employed in the development of the Find & Connect Web Resource and the work undertaken by research assistant Jill Barnard. Given that Find & Connect is still in a state of development, it does not claim to be comprehensive but does cover the major legislative changes in all states and territories.

The time frame for completion of this report did not allow for the more detailed research into the full legislation, parliamentary debates and other archival or governmental papers, including the regulations that helped public servants interpret the legislation, which is often where details of interpretation and implementation of legislation would be found. The absence of state legislation in any specific area identified below does not mean that the change of practice did not also occur in that jurisdiction. There may have been legislation not yet identified, clauses amended to an Act in a related area, or a change by regulation. A more detailed research project, which provided the resources necessary to access such material, would allow a skilled historian to identify these changes.