Most people are aware that people working in specific professions such as teachers, doctors, registered nurses, and police officers are required to make a report to Child Safety if they –
- form a reasonable suspicion that a child has suffered, is suffering, or is at an unacceptable risk of suffering significant harm caused by physical or sexual abuse, and
- the child may not have a parent able and willing to protect them.
These are called mandatory reports and are made by designated mandatory reporters.
But did you know that every adult in Queensland is required by law to report certain offences against children, and some must take active steps to protect children in certain circumstances? This obligation applies to every adult even in organizations (such as schools) that have designated mandatory reporters.
The Law
Failure to Report
The Queensland Criminal Code [1899] (“the Code”) section 229BC (1) – (2) states:
This section applies to an adult if—
the adult gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child by another adult; and
at the relevant time, the child is or was—
under 16 years; or
a person with an impairment of the mind.
If, without reasonable excuse, the adult fails to disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought reasonably to have been, formed, the adult commits a misdemeanor.
Failure to Protect
S229BB of the Codes states that all adults associated with an entity that provides services to children or engages in activities with them (for example, schools, government agencies, religious organisations, hospitals, child care centres, licensed residential facilities, sporting clubs, youth organisations) who have the power or responsibility to reduce or remove the risk that another adult will commit a sexual offence in relation to child must take reasonable steps to protect the children in their care from a child sexual offence where –
the child is either under 16 years; or
is a person with an impairment of the mind.
A failure to protect (whether willful or negligent) is an offence.
What is a Child Sexual Offence?
A child sexual offence is an offence of a sexual nature committed against a child (that is, someone aged under 18 years). This would include, for example –
- Indecent treatment of a child
- Carnal knowledge with or of a child
- Rape
- Incest
- Grooming a child (or their parent or carer)
- Making child exploitation material
- Maintaining a sexual relationship with a child
What Steps Should I Take?
Question 1: Have I formed a reasonable belief that a child sexual offence is being or has been committed against a child by another adult?
A reasonable belief is knowledge that a reasonable person would form in the same position and with the same information. Whether a reasonable belief is formed will always depend on the circumstances.
A reasonable belief will usually be formed if –
- a child states they have been sexually abused,
- the child shows signs of sexual abuse.
Question 2: Is the child in question under 16 years, or under 18 years with an impairment of the mind?
If the answer to the above to questions is yes, then you must report it to the police – unless you have a reasonable excuse for not doing so.
Question 3: Do I have a reasonable excuse for not reporting this to the Police?
It will be a reasonable excuse if –
- you have already reported the offence to an appropriate authority, for example, Child Safety
- you know that another person has or will report it, for example, another teacher has already reported the offence pursuant to other laws
- you believe that the information has already been reported to a police officer
- you received information about the victim who is now an adult and you reasonably believe they do not want to reveal it to the police
It is not a reasonable excuse that the disclosure of abuse was made during religious confession. Information about a sexual offence against a child that has been gained during, or in connection with, a religious confession, must be reported to police.
However, privilege conferred by law is not overridden by the Code and legal professional privilege and sexual assault counselling privilege still apply.
Question 4: Do I have an obligation to take active steps to protect the child?
If you (an adult) are associated with an entity that provides services to children or engages in activities with them (for example, in schools, government agencies, religious organisations, hospitals, childcare centres, licensed residential facilities, sporting clubs, youth organisations), then you must take reasonable steps to protect the child where you have the power or responsibility to do so.
This means taking reasonable steps to reduce or remove the risk that another adult will commit a sexual offence in relation to the child. The exact steps will be based on the varying circumstances of each situation.
Key Take Aways
The reporting obligations in the Code for all adults stand in addition to the obligations around mandatory reporting. This means that a mandatory reporter, such as a teacher, has reporting obligations under both the Code and the Child Protection Act 1999 (Qld).
But protecting children from sexual offences is the legal obligation of all adults. Regardless of whether you are a teacher or a volunteer working with children, all adults have a duty to report and prevent child sexual offences.
Our friendly team of lawyers would be more than happy to provide you with our legal advice if you need further clarity or are experiencing similar circumstances.
Article written by Eustacia Yates