Queensland has recently passed new laws aimed at better protecting children from child sexual offences. These laws impose positive obligations on adults to protect a child from being sexually offended against, and to report a belief that child sexual offences are being or have been committed. It is a crime not to comply with these positive obligations.
If your business works with children or performs work for businesses or individuals involved in the care or supervision of children, you should ensure your staff members are aware of their obligations under the new laws. You should also consider any child protection policies your business may have to ensure they reflect the new obligations.
Failure to report a belief of a child sexual offence occurring
To protect children from child sexual offences, all adults are now required to report any information they have that may indicate a child sexual offence that is being or has been committed, unless they have a reasonable excuse not to.
Under section 229BC of the Criminal Code, an adult is required to make a report to a police officer, as soon as possible, if the adult believes (on reasonable grounds) that a child sexual offence is being or has been committed based on information they acquire.
Failure to make a report without a reasonable excuse is a criminal offence carrying a maximum penalty of three years imprisonment.
What is a reasonable excuse?
Some examples of a reasonable excuse include if the adult:
- believes that the information has already been disclosed to a police officer
- has already reported the information under other reporting obligations that apply to them
- gained the information after the child became an adult, and the alleged victim does not want the information disclosed to a police officer
- believes making a report would endanger their safety or another's (not including the alleged offender)
- gained the information in circumstances covered by legal professional privilege.
In other words, an adult may have to make a report even if they gain the information in a confidential setting, such as a workplace investigation or a religious confession.
Immunity for good faith disclosure
No one who makes a report in good faith will be liable civilly, criminally or under an administrative process for the disclosure. This means that defamation and other legal claims cannot be brought against a person from making a good faith report to the police.
When does the obligation apply?
The obligation applies to any information gained from 5 July 2021. There is no obligation to report information acquired before that date. However, if further information is gained after that date, the adult must report that information.
Further, the obligation will apply to information gained after 5 July, even if the alleged offence would have occurred before this date. This means that there is an obligation to report alleged historical offences if information about those offences is gained after 5 July.
Who will the obligation apply to?
The obligation applies to everyone. Regardless of your business, if your employees gain information of child sexual offending, they must report it. This is an extremely broad obligation.
Practically, this obligation could apply to any person involved in businesses that provide services to children or organisations involved in the care or supervision of children. For example, if a child makes a comment to their hairdresser or sports coach that causes the adult to believe an offence is being committed, then that adult would be obligated to report the information. Similarly, an employee of an information technology company providing services to a school who observes something that causes them to believe a child sexual offence is being committed must report this information.
Failure to protect a child from risks of sexual offences
To protect children from child sexual offences occurring in institutions, people who work or volunteer with institutions are now required to reduce or remove significant risks of child sexual offences being committed by those associated with the institution. Failing to do so, either wilfully or negligently, will be an offence.
Section 229BB of the Criminal Code makes it an offence for an adult (who is associated with an institution) to wilfully or negligently fail to reduce or remove a risk of a child sexual offence occurring if:
- the adult knows there is a significant risk that another adult will commit a child sexual offence
- the alleged offender is also associated with an institution or is a volunteer
- the child is under the care, supervision or control of an institution
- the adult has the power or responsibility to reduce or remove the risk.
The offence carries a maximum penalty of five years imprisonment.
What is an institution?
An institution is an entity that provides services to children or operates a facility for or engages in activities with children. For example, child care centres, licensed residential facilities, sporting clubs, youth organisations, schools, religious organisations, government agencies and hospitals will all be institutions.
When will someone be associated with an institution?
Someone will be associated with an institution if they:
- own, manage or control the institution. For example, principals at a school or the owners and managers of a child care centre
- are employed or engaged by the institution. For example, a contractor providing coaching services to a sporting club, or school employees including non-teaching employees
- work as a volunteer for the institution. For example, a volunteer of a youth organisation
- provide services to children under the care, supervision or control of an institution. For example, a nurse providing health services to a child residential facility who is not an employee of the residential facility
- engage in activity for which they are required to hold a blue card.
Wilfully or negligently fail to reduce or remove the risk
An offence will only occur if a person, with the power or responsibility, wilfully or negligently fails to reduce or remove a relevant risk. Therefore, that person's failure must be intentional, or it must fall short of the standard of care that a reasonable person would adopt.
Who will the obligation apply to?
This obligation only applies to adults associated with an institution, affecting far fewer people than the reporting obligation. However, it is still rather broad.
If your business is involved in caring for or supervising children, or provides services to children who are cared for or supervised by an institution, the obligation will be relevant to your employees.
What should you and your business do?
These new provisions will apply quite broadly. If your business or employees are affected by the above obligations, you should:
- ensure that all staff members, including contractors and volunteers, are aware of the obligations and the relevant consequences for failing to comply with them
- review any policies that may be affected by these new obligations and update them as necessary.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.