Reporting child sexual abuse - the law

FAILURE TO REPORT NOW A CRIMINAL OFFENCE

Posted: September 01, 2021

Reporting child sexual abuse – changes to the Queensland Criminal Code to better protect children from sexual abuse

Section 229BC of the Criminal Code (Qld) now makes it an offence for an adult to fail to report information to police about child sexual abuse, in circumstances where the adult has a reasonable belief or ought reasonably to cause the adult to believe, that a child has been offended against or is a victim of child sexual abuse.

So here are some need-to-know facts about the new law:

WHY CHANGE THE LAW?

The Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’) conducted an extensive five-year (between 2012 and 2017) inquiry.

The result was 85 recommendations aimed at reforming the criminal justice system in Australia to provide fairer responses to victims of institutional child sexual abuse.

The recommendations covered police and prosecution responses; sentences and appeals; evidence of complainants; and relevantly, the recommendation of ‘failure to report’ and ‘failure to protect’ offences (Recommendations 33-35).

These offences were recommended in light of the under-reporting of child sexual abuse within an institutional setting to external governmental authorities where abuse was known or suspected.

In adopting the ‘failure to report’ recommendation, the Queensland Government has made it mandatory for adults (anyone over 18 years of age) to disclose information to a police officer about child sexual abuse (past or present).

This is irrespective if the alleged child abuse is within an institutional setting.

WHEN DOES THIS LAW COME INTO PLAY?

It came into effect on 5 July 2021.

This means that if you are an adult who has gained relevant information about child sexual abuse on or after 5 July 2021, you may be subject to this mandatory reporting obligation.

HOW DO YOU KNOW IF YOU HAVE TO REPORT INFORMATION ABOUT CHILD SEXUAL ABUSE?

If a person meets the following criteria, they may be required to disclose information to a police officer:

The person is 18 years of age or older (‘the adult’); and
The adult has gained information which causes them to believe on reasonable grounds or ought reasonably to cause them to believe, that a sexual offence is being or has been committed against a child by another adult; and
The adult gained this information on or after 5 July 2021.

WHAT IS ‘REASONABLE BELIEF’?

A reasonable belief is not defined in the legislation. In simple terms, a reasonable belief is a belief that a reasonable person would form with the same information and in the same situation. A reasonable belief is always dependent on the circumstances.

Information which may form a reasonable belief includes a child disclosing they are currently a victim of child sexual abuse.

ARE THERE ANY EXCEPTIONS/EXCUSES TO THIS OFFENCE?

Yes. There are some circumstances where an adult does not have to report information about child sexual abuse to police.

These exceptions include:

The adult believes, on reasonable grounds, that the information has already been disclosed to police (for example, if the adult was made aware of the child sexual abuse by the child’s teacher and such information has already been reported to police); or
The adult has already reported the information under the Child Protection Act; the Educational (General Provisions) Act or the Youth Justice Act or believes on reasonable grounds that another person has done or will report under these Acts (for example, you are a schoolteacher who has gained information about child sexual abuse and you have reported this information to your Principal); or
The adult has gained the information from an adult victim (who discloses that they were sexually abused as a child) however the adult reasonably believes the adult victim does not want this information disclosed to a police officer (for example, the adult victim explicitly states they do not want to make a complaint); or
The adult reasonably believes that by disclosing the information to police would endanger the safety of the adult or another person (other than the alleged offender); or
Failure to disclose the information to police is a reasonable response in the circumstances.

WILL THERE BE CONSEQUENCES TO THE ADULT WHO DISCLOSES INFORMATION TO POLICE ABOUT CHILD SEXUAL ABUSE?

Providing the adult discloses the information in ‘good faith’, the adult is not liable civilly, criminally or under any administrative process for making the disclosure to police.

WHAT IS THE PENALTY?

The maximum penalty for this offence is three (3) years imprisonment. The offence is classified as a misdemeanour and therefore can be disposed of summarily (that is, in the Magistrates Court).

HOW TO REPORT

I may have a reasonable belief about child sexual abuse, so how do I report this information?

You can attend or telephone your local police station and speak with a Police Officer.

You can also contact PoliceLink on 131 444 or in an emergency situation contact 000.

Remember, you must disclose the information to a police officer as soon as reasonably practicable after you have the belief or ought to reasonably have the belief.

If you are unsure if you must report information to police, seek legal advice.

WHAT HAPPENS IF I HAVE BEEN CHARGED WITH THIS OFFENCE?

If you are being investigated and/or charged in relation to this offence, it is important that you immediately seek advice from a lawyer with criminal law experience.