Education Law Alert - Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (Qld)

In brief - important development in Queensland's child protection laws will take effect in term three.

Recently, the Queensland Government, through the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (Qld) (Amendment Act), has made several key amendments to the Queensland Criminal Code to provide greater protection to children from sexual abuse.
 
In particular, the Amendment Act will, from 5 July 2021:

• make it an offence for any adult not to report a belief of sexual offending against a child by another adult to police; and

• create an offence of failure to protect a child from child sexual offences which occur in an institutional context.

Failure to Report

The Amendment Act amends the Criminal Code to make it mandatory for an adult who reasonably believes (or should reasonably believe) that a child (aged under 16 or under 18 with an impairment of the mind) is being or has been the victim of a child sexual offence, to report it to the police, unless they have a reasonable excuse.

An adult will include some students in grades 11 and 12 in school settings and anyone who have reached the age of 18 in University, VET and College settings.
 
Subsequent to the reform, any information gained by an adult in respect of a suspicion of child sexual offences must cause the adult to believe, on reasonable grounds, that a child sexual offence is being, or has been, committed against the child.

In the amended legislation a 'child sexual offence’ is defined as an offence of a sexual nature which is committed in relation to a child, including offences such as:

• 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; or

• Maintaining a sexual relationship with a child.

This conduct will include sexting, the sharing of pornographic images, and communications about sex or sexual conduct with a child under the age of 16 or a person with an impairment of the mind under the age of 18.
A person with a 'reasonable excuse' including instances where a person has already reported the information, or reasonably believes that another person will report the information under existing reporting requirements of the Child Protection Act 1999, the Education (General Provisions) Act 2006 or the Youth Justice Act 1992 may not need to make a report.

It is also a reasonable excuse if the adult:

• received information about the victim (who is now an adult aged 18 or over) and the adult reasonably believes the victim does not want to reveal the abuse to the police; or

• reasonably believes that reporting the offence to police would endanger the adult or another person (other than the alleged offender).

The reporting offence provision also makes it clear that a person who, in good faith, discloses information in accordance with the provision, is protected from liability of a civil or criminal nature or pursuant to an administrative procedure for the making of that disclosure.

Application of the Provision

The new reporting offence will apply to information received on or after commencement (i.e. on 5 July 2021), even if that information relates to abuse that occurred before this commencement date.

If an adult received information prompting a reasonable belief of sexual abuse against a child before 5 July 2021, they do not have to report it under the new laws. However, if the victim is currently under 18, they may need to report it under other reporting obligations, such as to Child Safety Services if the mandatory reporting laws apply to you.

We note however that, even if there are no strict legal obligation to report the information, we recommend that all adults are encouraged to voluntarily report such matters to the police.

Penalty for Non-compliance

A maximum penalty of three years imprisonment will apply to the new failure to report offence.

Failure to Protect

The Amending Act amends the Criminal Code to provide a new offence of failure to protect child from child sexual offence. The failure to protect offence will apply to an ‘accountable person’ (i.e. an adult 18 years or over who is associated with an institution, other than a regulated volunteer).

Under the failure to protect offence, an ‘accountable person’ will be liable where the person:

• knows there is a significant risk that another adult (who is associated with an institution or is a regulated volunteer) will commit a child sex offence; and

• has the power or responsibility to reduce or remove the risk; and

• wilfully or negligently fails to reduce or remove the risk.

The failure to protect offence will apply to a child that is under the care, supervision or control of an institution and the child is either under 16 years, or 16 or 17 years of age with an impairment of the mind.

A maximum penalty of five years imprisonment will apply to the new failure to protect offence.

Recommendations

While there is no legislated mandate for adults to participate in child safety or protection training programs, given the wide application of the laws, contemporary expectations of regulators, parents and the broader community and potential implications for students, it is recommended that your organisation might want to consider some or all of the following:

• communicate with staff, parents students and the broader school community about the changes;

• offer training (whether on-line, in class or during staff meetings) to address the reforms;

• keep records of the training and offers of training;

• create a policy covering the key aspects of the reform and designate a support persons to assist students and staff  navigate reporting such matters;

• all students who are aged over 18 might receive child protection and changing responsibility content in relevant classes or as part of their foundation units. Such modules should explicitly cover the application of the Amending Act and should run through several key examples of when a reporting obligation will arise. It will be critical to ensure that all students who are, or will turn 18 have completed such training.

• Provide regular re-fresher training around the obligation to report.

• Incorporate reporting obligations into existing policies and procedures, where appropriate.