New Criminal Offences under Statutes Amendment (Child Sexual Abuse) Act 2021
New criminal offences created under the Statutes Amendment (Child Sexual Abuse) Act 2021 include:
- Failure to report child sexual abuse; and
- Failure to protect a child from sexual abuse.
This Act came into effect on 1 June 2022 to introduce important reforms arising from recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse.
These offences carry a penalty of imprisonment.
It is important for all teachers, educators, approved providers, contractors, employees, and volunteers working with children to understand your legal obligations under the Act.
Royal Commission findings and reasons for creation of the new offences
The new offences were created as the Royal Commission found that historically, institutions working with children under-reported suspicions of child sexual abuse to police when a staff member was involved.
It is often difficult for a child victim to disclose abuse in a timely manner; children have fewer opportunities and less ability to report abuse to the police or take effective steps to protect themselves.
These offences are designed to require adults in institutions to take responsibility for reporting and preventing child sexual abuse in institutional contexts.
Failure to report child sexual abuse – legal obligations
A prescribed person is guilty of an offence if they fail to report to police that they know or suspect that another person (the abuser) is an employee of the school, student exchange organisation, service or provider and is, has, or is likely to sexually abuse a child.
A prescribed person means an adult who is an employee of an institution which includes a person who is self-employed who carries out work for the institution or a person who carries out work under a contract of services for the institution or a person who undertakes practical training with the institution or carries out work as a volunteer for an institution.
Employee therefore includes (but is not limited to) a principal, teacher, educator, early childhood teacher, grounds person, student teacher, contractor, Governing Council employee, OSHC employee, executive officer and Family Day Care operator. It also includes a volunteer such as a Governing Council member or parent volunteer.
The requirement to report to police created by this offence is a different obligation to reporting a child at risk of harm of sexual abuse to the Department for Child Protection (CARL), which still needs to occur.
The requirement is focused on reporting the actions of a suspected offender. It includes any suspicion you may have about behaviour outside the workplace and outside of work hours. You do not need to know the identity of the child or young person.
It is a defence to the charge of failing to report in you believe on reasonable grounds that the matter has already been reported as a mandatory notification under the Children and Young People (Safety) Act.
However, you should always report to police when you know or suspect that another employee is engaging or likely to engage in the sexual abuse of a child.
Failure to protect a child from sexual abuse – legal obligations
A prescribed person is guilty of an offence if:
- They know there is a substantial risk that another person, who is an employee of the provider, service, school, or student exchange organisation will engage in the sexual abuse of a child, and
- The prescribed person has the power or responsibility to reduce or remove that risk but negligently fails to do so.
A prescribed person has the same meaning as above.
The expectation is that a prescribed person who know there is a substantial risk that another employee will engage in the sexual abuse of a child, will take all action they can, commensurate with their role and responsibility, to reduce or remove the risk.
Child Abuse Report Line 13 14 78 for all serious concerns, available 24/7.