The below article from 13 October 2014 has been provided by Steven Troeth, Gadens Lawyers.
The recently introduced criminal offence obliging adults to report sexual offences against children, applicable to employees of schools, will come into operation on 27 October 2014.
The offence is directed to all adults, including all employees of schools, who have information about a sexual offence against a child but fail to report it.
Failure to disclose a sexual offence against a child under 16
The offence of failing to disclose a sexual offence against a child under 16 commences on 27 October 2014.
This offence creates a community wide duty on all adults to report to the police information about a sexual offence against a child and therefore encapsulates all adults who work in Victorian schools.
The offence applies to any adult who has information that leads him or her to form a reasonable belief that a sexual offence has been committed in Victoria by an adult against a child. If an adult has such information, he or she will be required to disclose the information to a member of the Victoria police force as soon as it is practicable to do so, unless he or she has a reasonable excuse.
The circumstances in which a person will have a reasonable excuse from reporting the information to the Victoria police includes:
- where the person may reasonably fear for their safety, or the safety of the child or another person (other than the offender), if the offender was to find out that the offence had been disclosed to the police and the failure to disclose the information was a reasonable response in the circumstances.
- the person believes on reasonable grounds that the information has already been disclosed to the police and the person has no further information to add.
- the victim, now being over 16, requests that the information not be disclosed to the police (unless the victim has an intellectual disability and does not have the capacity to make an informed decision).
The offence will not apply to information obtained through a rite of confession or similar practice, providing there was no criminal purpose involved in the confession.
Further, the offence will not require a medical practitioner or counsellor in whom a child victim has confided to disclose the information to the police. This is to ensure that the offence does not operate to discourage victims from disclosing information where it is a part of a support mechanism or treatment for the child.
A person who discloses information to the police will have certain protections under the law that will be similar to those provided to a person under the mandatory reporting regime. For instance, the person is assured confidentiality in relation to their identity unless they consent or a Court grants leave for evidence of their identity to be given during a legal proceeding.
The offence attracts a maximum term of 3 years imprisonment.
Failure by a person in authority to protect a child from a sexual offence
The offence of failing to protect a child under 16 from a sexual offence has not yet been proclaimed and therefore, unless it is proclaimed earlier, will commence on 1 July 2015.
The lead time for the commencement of this offence should be used by schools to prepare and train their staff in relation to these new obligations.
This offence will apply to a person who occupies a position in a school with the authority or responsibility to reduce or remove a substantial risk that a student will be sexually abused by someone associated with the school. The offence will be committed when the person in authority negligently fails to take reasonable steps to reduce or remove the risk of a student being sexually abused.
In a prosecution of an offence it is not necessary to prove that a sexual offence has been committed. Further, the offence does not require that a specific child be identified as being at risk. It will be sufficient to prove a substantial risk of any child at the school becoming a victim of a sexual offence by an associate of the school and that the person in authority, knowing the risk, failed to reduce or remove it.
The person who presents the risk of a sexual offence must be associated with the school. It includes a person who is an officer, office holder, employee, manager, owner, volunteer, contractor or agent of the school. The offence will attract a maximum term of 5 years imprisonment.
These two new offences follow the earlier commencement of grooming laws on 9 April 2014.
The grooming laws prohibit a person 18 years or older from grooming a child who is under the age of 16 or from using a person under whose care, supervision or authority the child is, for the purpose of grooming the child.
This offence carries a maximum term of 10 years imprisonment.
Updating mandatory reporting policy and training
School employees are uniquely positioned to identify risks of abuse against children. We strongly recommend that schools inform their staff, and provide training, in relation to these new laws. It is particularly necessary that teachers and senior staff understand the nature of these new laws and how they operate.
We also recommend that schools update their mandatory reporting and child abuse policies to ensure that they cover the obligations of all employees under the new laws and to set out what processes the school has in place to ensure that the laws are complied with.
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