If these orders are broken, the perpetrator can be charged under the Crimes Act 1900 (NSW) with a maximum penalty of $5500 and/or minimum two year imprisonment.
This reflects the changing needs of society to provide harsher punishments to child abusers.
Also, under the Commission for Children and Young People Act 1998 (NSW) and Child Protection
(Prohibited Employment) Act 1998 (NSW), employees who work in an environment primarily engaged with children are required to be screened for any possible dangers or risks they may have.
This protects children from people who may be likely to abuse them.
The Family Law Act 1975 (Cth) [incorporating further amendments in 2005] also requires allegations
of abuse to be reported to state child protection authorities, again furthering protection of child abuse. This act may also restrict the offender with any children the Family Court deems are at risk from that person in the family household.
However, whilst there are statutes and sanctions in place to protect children, weaknesses still exist
within the legal system.
Firstly, in order to prove an ADVO or an APVO has been breached, it must be proven beyond reasonable doubt, which places the onus of proving the breach to the ones in need of protection, the children and possibly their parents/caregivers, making it harder to enforce the protection order.
As well, fines of a fixed monetary value may not deter the offender from further potential abuse,
as a person on a higher income may be able to easily afford the maximum fine of $5500
Also the Family Court has no independent power to investigate child abuse claims made by one parent against the other. In addition, The Australian Constitution does not stipulate specific powers for the protection of children from abuse for the Federal Government. It only delineates powers regarding “private” family law matters, such as marriage, divorce and related parental rights.
These powers regarding child protection are therefore residual powers for each of the states, causing problems for child enforcement agencies in enforcing laws to interstate child abusers, as seen in The Age newspaper article “Child protection laws should be uniform” (9/4/09). The article tells that the different jurisdictions of each state and lack of uniformity of child protection laws have created “loopholes” for potential abusers.
The protection of children can also be provided through the Department of Community Services
(DOCS).
DOCS can make an application for one or a multitude of care and protection orders to the
courts, including removing the abused children from their homes for a short or long period of time.
This protects the child from further abuse in the household, but may not be in the best interests of the child, as seen in the SMH article “Trouble ahead for babies shared between angry, divorced parents”.
The article outlines a study which shows that as much as 60% of infants who live in alternating environments grow up to have “alarming levels of emotional insecurity and poor ability to regulate strong emotion.” It therefore can be seen that there is a conflict in the balancing the rights of
the child and the rights of society to want that protection.
DOCS can also be criticised for its failure to monitor cases adequately and it’s lagging response time.
This is due to the inefficient allocation of resources and government funding, which have led to a high turnover of staff, allowing child abuse cases to fall through the “cracks” and go undetected. This can clearly be seen in a 2010 case where a mother has forced her 12 year old daughter into prostitution, using the money to pay for drugs and charging extra for unprotected sex. This is a clear failure and ineffectiveness of the legal system, and the demands for DoCS services continued to escalate, with more than 309,676 child protection reports during the year and more than 16,524 children in out-of-home care in NSW.
But although DoCs seem to be inadequate in many areas concerning child protecting, it has since acknowledged its shortcomings, in a Keep Them Safe: A shared approach to child wellbeing package that builds on the five years of reform that began in 2002.
The 2002 package included an increase to the number of frontline caseworkers, improvements to policies and systems and the introduction of the Brighter Futures early intervention program. The changes have provided a sound platform for further improvements.
Another is the Child Protection Enforcement Agency, established in July 1996 with the NSW Police, investigates serial child sexual assault and child pornography. The NSW Police have also recently undergone another program in 2004 continuing in 2005 called Operation Auxin. This program targeted individuals distributing and owning child pornography on the Internet, protecting children from paedophilia and thus abuse.
International law also provides for the protection of children in many conventions and treaties. In
particular, the United Nations Convention on the Rights Of the Child 1990 (CROC), which has been
ratified by the Australian Government, sets out the basic rights of children, with prime focus on the
“bests interests of the child”.
However, International law, including CROC is only enforceable and thus effective if Australia enacts
these laws into their own domestic legislation as Australia is a sovereign nation, which generally has precent over international law. Though international law still has a persuasive effect on Australia’s legal system with regard to the protection of children from abuse as seen in B and B v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCa 621. The Full Court of the Family Court ordered the immediate release of five children from a South Australian Baxter Detention Centre as this was not considered with regard to CROC in the “best interests of the child”.
It therefore can be seen that the legal system provides children with a myriad of protection from abuse. However, the protection of children is lacking in some areas of the legal system, which prevent it to be fully effective. Though as society changes its needs and wants in the future, the legal system will be dynamic in its response to reflect those changes, which will further improve the protection of children from abuse.
