No operational inconsistency between Queensland and NSW child protection laws

1 July 2013
In 2012, Crown Law, on behalf of the Attorney-General, intervened in a Constitutional matter in the Federal Court of Australia that raised questions about how the laws of different States may apply to the same subject matter.

Specifically, the case considered whether a Temporary Assessment Order (TAO) under the Child Protection Act 1999 may validly be made in respect of a child who was physically present in New South Wales and had never entered Queensland. The case also considered how such an order could be reconciled with New South Wales legislation that specifically applied to children who did not ordinarily live in New South Wales but were present in that State at the relevant time (although no proceedings had been commenced under the relevant legislation).

The applicant, Ms B, was a resident of Queensland who lived on the Gold Coast. On 30 March 2011, she gave birth to a son at a hospital in northern New South Wales. The child and his mother remained in hospital until 4 April 2011.

On 31 March 2011, a Magistrate in Queensland made a TAO under the Act in respect of the baby. The purpose of the TAO was to authorise actions that were necessary as part of an investigation to assess whether a child is a child in need of protection (see s 24(2) of the Act).

The TAO authorised an officer to take the child into the care of the Chief Executive of the Department of Child Safety (now the Department of Communities, Child Safety and Disability Services). The order was later extended, and expired on 4 April 2011. On that day, the baby was placed in foster care.

From 31 March to 3 April 2011, Ms B gave her baby some care in the hospital. However, if the TAO made on 31 March 2011 was valid, he ceased to be her legal responsibility.

In April 2011, Ms B claimed a benefit payment known as the baby bonus under the A New Tax System (Family Assistance Act 1999 (Cth) for the period of 30 March to 3 April 2011 (five days).

Although Centrelink initially refused her application, an internal review of that decision found that she was entitled to receive payment of the baby bonus for one day, 30 March 2011.

On appeal, the Administrative Appeal Tribunal (AAT) found that Ms B was entitled to payment for two days: 30 and 31 March. This was based on the fact that the first TAO was not made until 6.02 pm on 31 March, giving Ms B legal responsibility for her son’s care for more than 75 per cent of that day.

Ms B then appealed to the Federal Court against the AAT decision. The grounds for Ms B’s appeal were that she was entitled to payment of the baby bonus for the five days during which she and her son were in hospital because she provided care for him for that time.

On 7 November 2012, Justice Logan ordered that a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) be served. In summary, the notice raised the following questions:

  • Is it within the legislative competence of the Queensland Parliament to enact a law allowing for the making of a Temporary Assessment Order in circumstances where the child concerned was not born in, and had never entered, Queensland (although the child was expected to reside in Queensland)?
  • Is it within the legislative competence of the Queensland Parliament so to legislate in circumstances where the legislature of New South Wales has made similar provision in respect of children within that State, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the NSW Act)?
  • Section 118 of the Constitution provides: “Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State”. Does s 118 of the Constitution require that a temporary assessment order made in Queensland be recognised in New South Wales; and does s 118 give the order validity, notwithstanding that the legislature of New South Wales has enacted the NSW Act?

The Attorney-General submitted that it was within the legislative competence of the Queensland Parliament to confer jurisdiction on a Magistrate to make a TAO in these circumstances (irrespective of the existence of the NSW Act), and that the order was enforceable or “valid” in New South Wales.

Justice Logan gave judgment on 22 May 2013 (B v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 480).

His Honour held, consistent with the Attorney’s submissions, that TAOs were valid in New South Wales because there was a sufficient nexus between Queensland and the child (his parents both resided in Queensland), and there was no operational inconsistency between the relevant laws of Queensland and New South Wales.

Therefore, the TAOs were valid and care of the child was transferred to the Chief Executive after 31 March 2011, at which point the applicant became ineligible to receive payment.

His Honour dismissed the appeal and made no order as to costs. In handing down his judgment, His Honour specifically thanked the Attorney for his submissions.

The full text of the judgment can be found at http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0480.


The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 1 July 2013

Author: Philippa Mott