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Offences for which institutions and/or their representatives that were aware of child sexual abuse may be charged

The final group of offences considered as part of this review were those that could potentially be used to bring charges against institutions and their representatives who:

  • had some knowledge that staff/representatives were sexually abusing children under their care; and
  • failed to report their suspicions to the institution’s governing body (including the Chief Executive Officer), the police and/or the relevant statutory child protection agency.

Each Australian jurisdiction has enacted mandatory reporting laws that require specific individuals (or in the case of the Northern Territory, any person) to make a formal report to the relevant authorities if they have reasonable grounds to believe that a child is being sexually abused (for a review see Mathews & Scott 2013). Depending on the jurisdiction, mandatory reporters may include:

  • health professionals;
  • individuals working at a school and/or in an education role;
  • police officers;
  • child care centre staff;
  • public servants who during the course of their duties work with children; and
  • persons who hold a management position at an organisation that provide services to children.

Further, under the Family Law Act 1975 (Cth), persons employed by the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia are also mandatory reporters.

Mandatory reporters who fail to make an oral or written report to the relevant authorities in relation to the sexual abuse of a child may be charged with an offence. These offences, and others that may be used to bring charges against institutions and/or their representatives, are outlined in Table 8. To date, there have been very few attempts to charge those persons mandated to report suspected child abuse and neglect, and most of these attempts have ultimately been unsuccessful. For example, in 2011 charges were unsuccessfully brought against a NT youth worker who failed to report a five year old child’s sexualised behaviour until after she had witnessed it for a second time (Bolton 2011).

Table 8: Offences for which institutions and/or their representatives that were aware of child sexual abuse may be charged, by jurisdiction

Jurisdiction

Relevant legislation

Section

Offence

Aggravating factors

Age of victim

Maximum penalty & standard non-parole period (if applicable)

Australian Capital Territory

Children and Young People Act 2008

356(1)

Offence-mandatory reporting of abuse

<18 years old

MP: 50 penalty units, 6 months imprisonment or both

358

Offence- false or misleading mandatory report

MP: 50 penalty units, 6 months’ imprisonment or both

New South Wales

Crimes Act 1900

91F(1)

Premises not to be used for child prostitution

MP: 7 years imprisonment

316(1)

Concealing serious indictable offence

MP: 2 years imprisonment

316(2)

Concealing serious indictable offence (person solicits, accepts or agrees to accept any benefit in consideration for doing anything that would be an offence under 316(1))

MP: 5 years imprisonment

Children and Young Persons (Care and Protection) Act 1998

27(2)

Mandatory reporting

MP: Not specified

227

Child and young person abuse (person intentionally takes action that has resulted in or appears likely to result in)

<18 years old

MP: 200 penalty units

Northern Territory

Criminal Code Act 1983

104(1)

Compounding crimes

MP: 3 years imprisonment

MP: 7 years imprisonment (If the crime is such that a person found guilty of it is liable to be sentenced to imprisonment for life)

125D(1)

Criminal liability of executive officer of body corporate

MP: Maximum penalty that may be imposed on an individual for the relevant offence

Care and Protection of Children Act 2007

26(1)

Reporting obligations

<18 years old

MP: 200 penalty units

Queensland

Criminal Code Act 1899

133(1)

Compounding an indictable offence

MP: 3 years imprisonment

MP: 7 years imprisonment (If the indictable offence is such that a person convicted of it is liable to be sentenced to imprisonment for life)

213(2)

Owner etc permitting abuse of children on premises

12–15 years old (for an offence defined in s208)

12–17 years old (for an offence defined in s 210 or 215)

MP: 10 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

213(3)

Owner etc permitting abuse of children on premises

<12 years old

MP: 14 years imprisonment

MP: Life imprisonment (where the proscribed act is one defined to constitute an offence in s 208 or s 215)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

Public Health Act 2005

193

Offence (professional who fails to give notice under s191 or 192- mandatory reporting)

<18 years old

MP: 50 penalty units

Education (General Provisions) Act 2006

365(2)

Obligation to report sexual abuse of person under 18 years at State school (provision of written report to school’s principal)

<18 years old

MP: 20 penalty units

365(2A)

Obligation to report sexual abuse of person under 18 years at State school (provision of written report by school principal to the police)

<18 years old

MP: 20 penalty units

365(4)

Obligation to report sexual abuse of person under 18 years at State school (principal provides of written report to chief executive’s nominated party)

<18 years old

MP: 20 penalty units

365(5)

Obligation to report sexual abuse of person under 18 years at State school (chief executive’s nominated party provides report to police)

<18 years old

MP: 20 penalty units

366(2)

Obligation to report sexual abuse of person under 18 years at non-State school (provision of written report to school’s principal/school’s governing body)

<18 years old

MP: 20 penalty units

366(2A)

Obligation to report sexual abuse of person under 18 years at non-State school (provision of written report by principal to police)

<18 years old

MP: 20 penalty units

366(2B)

Obligation to report sexual abuse of person under 18 years at non-State school (provision of written report by principal school to director of school’s governing body)

<18 years old

MP: 20 penalty units

366(4)

Obligation to report sexual abuse of person under 18 years at non-State school (provision of written report to police by school’s principal/director of school governing body to police officer)

<18 years old

MP: 20 penalty units

Child Protection Act 1999

148(1)

Obligation to report harm to children in departmental and licensed care services

<18 years old

MP: 20 penalty units

South Australia

Criminal Law Consolidation Act 1935

14(1)

Criminal liability for neglect where death or serious harm results from unlawful act

Victim dies

< 16 years old

MP: 5 years imprisonment

MP: 15 years imprisonment (aggravated)

61

Householder etc not to permit unlawful sexual intercourse on premises

<17 years old

MP: 7 years imprisonment

Children’s Protection Act 1993

11(1)

Notification of abuse or neglect

<18 years old

MP: $10,000 fine

Tasmania

Criminal Code Act 1924

102(1)

Compounding crimes

MP: 21 years imprisonment

125

Person permitting unlawful sexual intercourse with young person on premises

<17 years old

MP: 21 years imprisonment

Children, Young Persons and their Families Act 1997

14(2)

Informing of concern about abuse or neglect or certain behaviour

<18 years old

MP: 20 penalty units

91(1)

Offence to fail to protect child from harm (person who has duty of care)

<18 years old

MP: 50 penalty units, 2 years imprisonment or both

Victoria

Crimes Act 1958

49C(2)

Failure by person in authority to protect child from sexual offence

<16 years old

MP: 5 years imprisonment

54

Occupier etc permitting unlawful sexual penetration

Victim <13 years old

<17 years old

MP: 10 years imprisonment

MP: 15 years imprisonment (aggravated)

326(1)

Concealing offences for benefit

MP: 12 months imprisonment

327(2)

Failure to disclose sexual offence committed against child under the age of 16 years

<16 years old

MP: 3 years imprisonment

330(1)

Confidentiality (disclose name or identifying information of person who made disclosure)

MP: 1 year imprisonment

Children, Youth and Families Act 2005

184(1)

Mandatory reporting

<18 years old

MP: 10 penalty units

493(1)

Offence to fail to protect child from harm (person who has duty of care)

<18 years old

MP: Not specified

Western Australia

Criminal Code Act Compilation Act1913

136(2)

Compounding or concealing offence

MP: 7 years imprisonment

186(1)

Occupier or owner allowing young person to be on premises for unlawful carnal knowledge

Victim <13 years old

<16 years old

MP: 2 years imprisonment

MP: 20 years imprisonment (aggravated)

Children and Community Services Act 2004

101(1)

Failing to protect child from harm (person who has care and control of a child)

MP: 10 years imprisonment

124B(1)

Duty of certain people to report sexual abuse of children

<18 years old

MP: $6,000 fine

Family Court Act 1997

160(2)

Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc

MP: Not specified

Commonwealth

Family Law Act 1975

67Z

Where interested person makes allegation of child abuse

MP: Not specified

a: ss 191–192 mandatory reporting of suspected harm being caused to a child