New offences for failing to report and protect children from child sex offences came into effect in Queensland on 5 July 2021. The creation of these new offences means that certain persons have important positive obligations to reduce or remove the risk of a child being sexually offended against, and to report child sexual offences to the police – even when there is only a ‘belief’ that an offence has been committed.
In September 2020, Parliament passed the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (‘the Act’) following recommendations made in the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The Act inserted several new offences into the Criminal Code, including the following:
The Failure to Protect offence makes it an offence for an accountable person who has the requisite knowledge to ‘wilfully or negligently fail to reduce the risk’ that another adult (the alleged offender) will commit a child sexual offence.
An ‘accountable person’ is broadly defined as an adult who is associated with an institution. An associate of an institution includes:
An ‘institution’ is broadly defined as an entity that provides services to children or operates a facility for, or engages in activities with children under the entity’s care, supervision or control.
The obligation to reduce or remove the risk of a child sexual offence arises when the following circumstances are met:
Therefore, the offence requires the accountable person to have knowledge of a ‘significant risk’ of a child sexual offence. Knowledge of a significant risk involves a standard somewhere between a trivial risk and a risk likely to materialise.
The accountable person may form the requisite knowledge having regard to the circumstances of the case, including the following factors:
The offence requires the accountable person to have wilfully or negligently failed to reduce or remove the risk.
Therefore, the accountable person’s failure to take appropriate action must either be wilful or alternatively, fall short of the standard of care that an ordinary, reasonable person in the situation of the accountable person would take.
The appropriate action that can be taken to reduce the risk that the alleged offender will commit a child sexual offence will depend on the circumstances but may include contacting the police and/or directing that the alleged offender to cease contact with the relevant child.
The Failure to Protect offence is a crime with a maximum penalty of five years imprisonment.
The Failure to Report offence makes it an offence for an adult to “fail to disclose information to a police officer” as soon as reasonably practicable after gaining information that would cause the adult to reasonably believe that a child sexual offence is or has been committed against a child (without reasonable excuse).
In contrast to the Failure to Protect offence, the Failure to Report offence applies to all adults, irrespective of the person’s employment.
The obligation to report a child sexual offence arises when the following circumstances are met:
Therefore, the offence requires the person to have a ‘reasonable belief’ that a child sexual offence is or has been committed.
A reasonable belief is a belief that a reasonable person would form in the same position and with the same information. For example, an adult may form a reasonable belief if a child disclosed that they have been sexually abused or the child displays signs of sexual abuse.
The obligation to report information about child sexual offences only applies to information gained on or after 5 July 2021 (when the offence came into effect). This means the person does not have to report information gained before 5 July.
However, the obligation still applies to any information gained after 5 July which relates to abuse that occurred before the commencement date.
A person is not guilty of the Failure to Report offence if they have a reasonable excuse for not reporting the child sexual offence to police. However, the onus of raising a reasonable excuse rests with the person. The provision contains a non-exhaustive list of reasonable excuses, some of which include:
The Failure to Report offence is a misdemeanour with a maximum penalty of three years imprisonment.
In relation to both the new offences, it does not matter that the accountable person/adult gained the relevant knowledge/information during, or in connection with, a religious confession.
If you’re being investigated, or have been charged, in relation to child sexual offences, including these two new offences, it is crucial that you seek legal advice early.
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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Gilshenan & Luton, Criminal & Employment Lawyers Brisbane and Sunshine Coast, Queensland.