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Mathews, Ben --- "Duties To Report Child Sexual Offences: A New Era In Australian Criminal Law" [2021] CanLawRw 13; (2021) 18(2) Canberra Law Review 54


Duties To Report Child Sexual Offences: A New Era In Australian Criminal Law

Ben Matthews[*]

In July 2021, Queensland became the most recent Australian State to enact a duty in criminal law requiring all adults in the community to report child sexual offences to police. These laws constitute significant public policy interventions to better identify cases of child sexual abuse, which also promote both national and international policy imperatives to protect children. In addition, by creating a positive duty in the criminal law, the laws embody an approach to responsible citizenship which extends the traditional parameters of criminal law liability, but is justified in doing so given the characteristics and gravity of sexual offences against children and their typical non-disclosure. This article conducts a comprehensive doctrinal and comparative analysis of these criminal law duties to identify common elements, and differences in nature and scope. Adopting a reform orientation, and using rule of law principles of clarity and consistency as an evaluative lens, the article will argue that there is a need for a uniform approach across States and Territories, and will identify areas requiring reform in jurisdictions that have already enacted legislation, and optimal approaches for legislative design in jurisdictions yet to enact the laws.

I Introduction

A Child sexual abuse and the national and international policy agenda

Child sexual abuse is both a widespread problem, and one which resists ready identification by social welfare and criminal justice agencies. Both internationally and within Australia, studies have found concerningly high prevalence. A global meta-analysis found approximately 12.7% of all children experienced sexual abuse.[1] The most comprehensive Australian study to date found 33.6% of women and 15.9% of men experienced non-penetrative CSA, and 12.2% of women and 4.1% of men experienced penetrative CSA.[2] Another Australian study found 1.1 per cent of participants reported sexual abuse by a parent.[3] A study in Victoria found 14.0% of girls and 4.6% of boys reported contact CSA.[4] Alongside its frequency, an invidious problem is the secrecy and non-disclosure of child sexual abuse. Those who inflict sexual abuse rarely disclose their criminal conduct, and research across cultures has found that nondisclosure and delayed disclosure of child sexual abuse by survivors is typical,[5] and is influenced by multiple factors.[6] Indeed, in relation to sexual abuse inflicted in both non-institutional settings involving family members or other known acquaintances, and in institutional settings, empirical evidence has conclusively shown delayed disclosure and non-disclosure are common. For example, in its Final Report, Australia’s Royal Commission Into Institutional Responses to Child Sexual Abuse[7] found that of those who contacted the Commission and were involved in private sessions, 57.4% first disclosed as adults, and it took these individuals an average of 31.9 years to disclose.[8] In its Interim Report, the Royal Commission found that out of 1677 people engaged in private sessions, it took an average of 22 years for those who disclosed institutional child sexual abuse to be able to do so.[9] Moreover, it is known that where disclosures do occur, they are less often made to criminal justice agencies.[10]

National and international policy agendas in recent years have witnessed increased recognition of the importance of both sexual abuse prevention and early responses. Within Australia, multiple inquiries at State and Territory level have considered these policy imperatives. These have occurred in multiple jurisdictions in the last decade alone, including New South Wales,[11] the Northern Territory,[12] Queensland,[13] and perhaps most decisively for the purposes of this article, in Victoria.[14] Nationally, over its tenure from 2012-17, the Royal Commission considered child sexual abuse within a range of organisational settings spanning education, religion, sport, culture, recreation and the arts, and considered multiple legal systems including criminal law and the various dimensions of its responsive capacity.[15] As will be discussed, these inquiries have spurred new legal and policy initiatives, and supported the development and ongoing expansion of existing initiatives, to better prevent and identify cases of child sexual abuse.

At the international level, the last three decades have seen sustained and gradually intensifying policy recognition of the importance of child abuse prevention. In 1989, the United Nations Convention on the Rights of the Child established clear imperatives to better promote and protect children’s safety and development, including through early detection of sexual abuse.[16] Article 19 requires States parties to take all appropriate measures, including legislative measures, to protect children from all form of, including sexual abuse. Most relevantly for this analysis, article 19(2) states that these protective measures should include procedures for the “identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment”.[17] Article 34 has further specific emphasis on the protection of children from sexual abuse, and requires States parties to “protect the child from all forms of sexual exploitation and sexual abuse”. In 2011, the Committee on the Rights of the Child provided further guidance on the nature and application of article 19.[18] In 2015, the United Nations Sustainable Development Goals (‘SDGs’) urged all nations to eradicate child maltreatment, and require governments to report on their efforts.[19] In particular, SDG Target 16.2 aims to end abuse, exploitation, trafficking, and all forms of violence against and torture of children; Target 5.2 aims to eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation; and Target 5.3 aims to eliminate all harmful practices, including child marriage and female genital mutilation.

Ground-breaking developments are emerging in other legal and scholarly settings. Other legal responses have continued to develop to better respond to cases of child sexual abuse. In the criminal law context, new offences have been created by all States and Territories to prohibit online child sexual abuse and exploitation,[20] and the Online Safety Act 2021 (Cth) was recently enacted to better regulate online content including by imposing obligations on both individuals and internet service providers. In the civil law context, statutes of limitation have been abolished for civil compensation claims.[21] Progress continues in developing agreement about the conceptual nature of child sexual abuse.[22] Leading philosophers such as Martha Nussbaum have turned their attention to this problem, and have declared child sexual abuse is a form of interpersonal violence requiring strong policy intervention.[23] Accordingly, the new criminal law reporting duties can be understood as part of a wave of regulatory responses to a major social problem that for too long has lacked adequate legal frameworks.

B Legal innovations in Australian criminal law: ongoing evolution

State and Territory inquiries have been accompanied by intensified public discourse and deepened understanding of the scale and gravity of child sexual abuse, its harmful consequences, and its clandestine and undisclosed nature. As a result of this new sensitisation to the problem, several Australian State and Territory governments have in recent years adopted a legal innovation, introducing new criminal law provisions which impose a positive obligation on all adults to report to police their awareness of cases of child sexual abuse. This expanding initiative is remarkable given the traditional scope of the criminal law is to punish acts, rather than omissions, and its reluctance to impose positive duties on third parties.

Since States and Territories have the legislative power to create their own criminal laws, and since this new context continues to evolve, the legal context across the nation raises important questions about the nature and application of the criminal law duties, and their consistency across jurisdictions. Within the criminal law setting, citizens need to know what their duties are, and this applies all the more to adults who commonly deal with children in various professional contexts. In addition, well-established rule of law tenets make it clear that the law must be intelligible, clear and predictable,[24] and unless there are clear jurisdiction-specific reasons which justify different approaches, it is desirable for State and Territory laws about the same topic to be both soundly framed, and consistent.

Scholarly research to date in this field has considered the application of some of these duties in specific contexts. For example, research has considered the application of the Victoria and New South Wales provisions to religious confession,[25] and other work has considered its application in contexts of researchers conducting epidemiological studies,[26] and medical consultations with adolescents engaged in consensual peer sexual activity.[27] Research has also outlined the nature of duties to report child sexual abuse in different branches of law, spanning criminal law, child protection law, and tort law.[28] However, the literature to date does not include a detailed analysis devoted to the nature and application of these duties in the Australian context, with coverage of all enactments including the recently commenced Queensland law. In addition, no analysis to date has adopted a reform orientation, employing analysis to inform future legal development.

Accordingly, this analysis is significant for all Australian States and Territories. The article extends previous scholarship to first conduct a comprehensive doctrinal and comparative analysis of these criminal law duties to identify both their common elements, and differences in nature and scope.[29] Then, informed by the socio-legal context, and using principles of clarity and consistency as an evaluative lens, the article argues there is a need for a uniform approach across States and Territories, and identifies areas requiring reform in those jurisdictions that have already enacted legislation, and directions for legislative drafting in those yet to do so. Findings and recommendations are relevant for all Australian States and Territories, and may be informative for other common law jurisdictions.[30]

II Legal duties in criminal law to report

designated criminal child sexual offences

A Jurisprudential background and Victoria’s landmark change

In criminal jurisprudence, law is generally concerned with prohibiting specified acts rather than punishing omissions. However, it is accepted that in certain circumstances, the criminal law can justifiably impose duties and criminalise omissions.[31] As articulated by Ashworth, the normative argument for criminalising specified omissions has three bases. First, based on the principle of urgency, the law may impose criminal liability in situations of sufficient individual or social urgency involving fundamental human interests or social values. Second, based on the principle of the priority of life, the law recognises the importance of each individual person and their right to life and survival. This right to survival includes the right not to be subjected to degrading treatment. This principle is afforded such stature that the criminal law may legitimately criminalise an individual’s omission to take protective action on behalf of another, in special circumstances where it is reasonable to require that individual to act to preserve this right. Third, the principle of opportunity and capacity states that where the first two conditions are met, it is legitimate to impose a duty on a person who has both the opportunity to give assistance to another – here, for example, through physical presence in witnessing the act, or personally receiving a disclosure from the victim with sufficient details) – and the capacity to give that assistance, such as by making a report to police.[32]

In Australian law, concealment offences had existed before the recent enactment of the duties to report child sexual abuse discussed here. However, they were not widely present, and were of narrow scope in that they required an element of personal gain.[33] For example, Victoria’s Crimes Act 1958 s 326 contained an element of personal benefit. Similarly, in Queensland, the offence of compounding an indictable offence in the Criminal Code Act 1899 (Qld) s 133 epitomised this conceptual approach:

Any person who asks for, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person, upon any agreement or understanding that the person will compound or conceal an indictable offence, or will abstain from, discontinue, or delay, a prosecution for an indictable offence, or will withhold any evidence thereof, is guilty of an indictable offence.

The problem with this approach was that where there was no clear and demonstrable personal benefit, the ambit of the duty was reduced. This had the effect that not only was it difficult to prosecute cases of institutional concealment – which while often containing intangible benefits, rarely if ever contained concrete property or benefit such as financial gain – it was also a narrowly cast duty to report which did not have at its core a fundamental obligation imposed on citizens to take positive action to assist a victim of crime. It did not respond to the fundamental human interests and societal values at stake, and it did not recognise each individual’s right to freedom from degrading treatment.

In addition, a problem with the former conventional concealment offences was that in order to secure a conviction, a high degree of knowledge had to be proved beyond reasonable doubt, and in the context of child sexual abuse this was not appropriate. The unsuitability of this level of knowledge would be expressly noted in the New South Wales Parliament when its amending legislation was introduced.[34] The difficulty of securing a conviction under the old scheme became starkly evident in 2018 when a conviction was overturned.[35]

B Victoria’s landmark change

The landmark legislative reform occurred as a result of a State government inquiry into institutional child abuse. The key breakthrough occurred in 2013, when Victoria’s Betrayal of Trust Inquiry identified wide-scale sexual abuse of children within non-government organisations, persisting over decades and continuing to the present era, and cover-ups of that abuse by people who knew about it. The Inquiry acknowledged evidence of children’s highly vulnerable position, the severe and lasting effects of sexual abuse, and the clandestine nature of offending and susceptibility to calculated concealment and other lack of remedial action. These findings animated recommendations for the creation of new reporting duties in criminal law, applied to all adults in the community, to bring cases of designated types of child abuse to the attention of police, even when such close and direct personal gain was not present. As a result, the Betrayal of Trust Inquiry recommended amendments to the Crimes Act 1958 (Vic) s 326, to remove the element of personal gain from this prior version of the concealment offence.[36] In making its recommendation, the Betrayal of Trust Inquiry also recognised the importance of reporting child sexual offences to the police, even in situations where the victim does not wish to pursue the matter through the criminal justice system. The reason for this was because disclosing the information to police might corroborate the account of another victim, or encourage other victims to come forward.

This recommendation would be substantially accepted by the Victorian Government, which passed the Crimes Amendment (Protection of Children) Act 2014 (Vic) to create an entirely new offence provision in s 327. The second reading of the amending legislation – the Crimes Amendment (Protection of Children) Bill 2014 (Vic) – clearly observed the influence of the Inquiry’s recommendations and their context. The newly enacted s 327 provision was designed to create a broader safety net to detect cases of child sexual abuse, by creating a community-wide obligation to bring known cases to attention.[37] The duty therefore requires all adults who have knowledge or belief that child sexual abuse has been committed to report this to the police. The Crimes Act 1958 (Vic) s 327(2) requires an adult in Victoria or elsewhere ‘who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16’ by an adult aged 18 or over to ‘disclose that information to a police officer ... unless the person has a reasonable excuse for not doing so’. Failure to report constitutes an offence punishable by a maximum of 3 years imprisonment. Notably, and in contrast with the provisions that would be enacted subsequently in other jurisdictions, the duty in Victoria is expressed to apply to adults both inside and outside Victoria.[38] This provision commenced on 27 October 2014.

Subsequent enactments in other Australian jurisdictions would take a broadly similar approach, although as seen below there would be some distinct variations between the provisions. These developments were supported by the Victorian breakthrough, but were also a response to a similar duty recommended in 2017 by the Royal Commission. Although its recommendation was restricted to persons in institutional settings, as a result of terms of reference, the duty recommended by the Royal Commission was of similar nature.[39] It was underpinned by the gravity of child sexual abuse, its susceptibility to active concealment and turning a blind eye, and an acknowledgment of children’s heightened vulnerability and less capacity to take steps to protect themselves, leaving them particularly in need of active assistance and protection by adults. The Royal Commission also recommended the duty to report should not be subject to any exemption for religious confession. In Queensland, where the new reporting duty most recently commenced, the second reading of the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill (Qld) reflected the powerful influence of the Royal Commission’s recommendations.[40]

Concerns that the duty may be expressed too broadly may be assuaged by pointing to the conventional features of the criminal justice system that protect the fair trial rights of the accused. A clear and strong body of evidence would be required to underpin a viable prosecution. In addition, such concerns may be allayed by the conventional control on decisions to prosecute. Official prosecution guidelines in each State and Territory contain a fundamental principle that a prosecution may only proceed if there is a reasonable prospect of a conviction; and if a prosecution is in the public interest.[41]

Accordingly, the State and Territory amendments to criminal law reporting duties have expanded those previously existing concealment offences beyond their original narrower scope – directed more towards preventing active concealment of offences for personal gain – to a broader application with more prosocial motivation to assist detection of serious crimes, regardless of any personal gain or vested interest. In addition, in most but not all cases, their temporal scope is wide, normally extending to knowledge or belief about cases of child abuse obtained after commencement of the legislation, but which can relate to abuse occurring before commencement.[42]

C Expansion to other States and Territories

After Victoria’s legislative expansion, other States and Territories considered their own reforms and from 2014 to date have continued a slow albeit steady movement in which the laws have gradually spread to four other jurisdictions.[43] As will be seen, because the Northern Territory has a hybrid reporting duty (combining elements of a child welfare and criminal law model), it could be concluded that as of September 2021, six of the eight States and Territories have some version of a criminal law reporting duty for child sexual offences, although five of these have been designed intentionally to be tailored to this specific criminal law model.

In chronological sequence, the commencement of these laws spread from Victoria in 2014 to New South Wales (31 August 2018), the Australian Capital Territory (1 September 2019), Tasmania (2 October 2019), and Queensland (5 July 2021). Five of the eight States and Territories have therefore now enacted a duty in criminal law requiring reports to police of specified significant child abuse offences, with all of these including designated child sexual offences.[44] In Victoria, New South Wales, Tasmania, the Australian Capital Territory, and Queensland, the duty requires all adults to report knowledge or a reasonable belief about specified sexual offences. It can be noted that the provisions in New South Wales and Tasmania also extend to specified physical assaults, although further discussion of this is beyond the scope of this article and warrants separate analysis.[45] None of the duties apply to other types of child maltreatment, namely emotional abuse, neglect, or exposure to domestic violence. To date, no legislation has been passed or introduced in South Australia or Western Australia, and no specific criminal law duty has been introduced in the Northern Territory.[46]

D Comparative analysis: Victoria, New South Wales, ACT, Tasmania, Queensland

1 Common elements

The essential nature of the duty is similar in each of the five jurisdictions with dedicated criminal law provisions. The provisions generally require an adult who believes a sexual offence has been committed against a child to disclose the information supporting that belief to police. The key difference between the jurisdictions is evident in the choice of whether or not to incorporate an objective element as well as a subjective approach. This was consciously done in New South Wales, for example, to “ensure a person cannot use wilful blindness to escape the application of the offence”;[47] and Queensland has also adopted this model in an indication that lessons have been learned from the different approaches taken to date in different States. Any possible doubt that the duty in this form has this broad application would be resolved quite clearly through the application of settled principles of statutory interpretation so that its broader ambit would remain undisturbed.[48] The core nature of the duty to report in each jurisdiction is set out in Table 1.

Table 1 Core nature of the criminal law duty to report child sexual offences to police

State / Territory
Core nature of duty to report
Victoria
s 327(2)
An adult ‘who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria’ against a child under 16 by a person over 18 ... must disclose that information to a police officer
NSW
s 316A(1)
An adult who knows, believes, or reasonably ought to know that a child abuse offence has been committed ... and who knows, believes, or reasonably ought to know that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender [must] bring that information to the attention of a member of the NSW Police Force
ACT
s 66AA(1)
An adult must report ‘information that leads to the person reasonably believing that a sexual offence has been committed against a child’ to a police officer
Tasmania
s 105A(2)
An adult must report ‘information that leads the person to form a reasonable belief that an abuse offence has been committed against another person who was a child at the time of the alleged offence’ to a police officer
Queensland
s 229BC(1)-(2)
An adult who ‘gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child [aged under 16]’ by an adult ... must disclose the information to a police officer

There are other common elements. These include: the duty only applies to adults, not to minors;[49] the duty does not apply where it is known that the situation has already been reported to police;[50] the duty does not apply where there otherwise is a lawful claim of right or privilege;[51] the duty does not apply where the person reasonably fears that disclosing the information would endanger the safety of another person other than the alleged offender;[52] and those who make reports are afforded protections from liability in civil, criminal and administrative processes.[53]

In addition, the provisions include a number of exceptions to be able to respond to exceptional circumstances and acknowledge that in some circumstances a higher ethical value may merit priority. There are two main exceptions, which are present in some form in each of the five legal models. First, the duty is rendered inapplicable in situations where the person with the knowledge or belief reasonably believes the survivor of the sexual offence does not wish it to be reported to police. This exception serves the purpose of privileging the survivor’s autonomy and privacy over other values underpinning the provisions, such as positive beneficence. Second, the duty is expressed to be inapplicable if the person with the knowledge or belief has a reasonable excuse for not reporting it. However, the scope of the exceptions is not consistent between jurisdictions, and the nature of the reasonable excuse exception means it is of uncertain application; these variations will be considered below.

2 Dimensions of inconsistency

Despite these similar broad parameters, there are several dimensions of inconsistency. Some of these are about potentially more minor matters, but others are more substantive. These key dimensions of inconsistency are summarised in Table 2, and discussed in further detail below.

Table 2 Key dimensions of inconsistency

State or Territory
Age of survivor / victim
Exclusion where reasonable belief survivor / victim does not wish report to be made
Exclusion by reasonable excuse
Expressly applies duty to religious confession
Victoria
Applies only to victims born on or after 28 Oct 1998
Yes (if victim is 16 or over) + victim request
Yes – but not exhaustively defined
No
NSW
Applies to victims of all ages
Yes (if victim is 18 or over)
Yes – but not exhaustively defined
Yes
ACT
Applies to victims of all ages
Yes (if victim is 18 or over)
Yes – but not exhaustively defined
Yes
Tasmania
Applies to victims of all ages
Yes (if victim is 18 or over)
Yes – but not exhaustively defined
Yes
Queensland
Applies to victims of all ages
Yes (if victim is 18 or over)
Yes – but not exhaustively defined
Yes

(a) Penalties and prosecution

The penalties for failure to report vary, ranging from 2 years in the ACT, 3 years in Queensland and Victoria, and 2 years or 5 years in New South Wales (depending on the penalty for the index offence).[54] In addition, three of the five jurisdictions – Victoria, New South Wales and Tasmania – expressly enable prosecution to be commenced only with the approval of the Director of Public Prosecutions.[55] This suggests a perceived need for a control on inappropriate prosecutions, but has the potential to create uncertainty and inconsistency.[56] The ACT and Queensland lack this mechanism, which may suggest a more liberal approach to prosecution. The ACT and Queensland should add this requirement for DPP approval. Ideally, penalties should also be harmonised.

(b) Religious confession

A further area of inconsistency concerns the application of the duty to knowledge or belief generated through religious confession. Here, four of the five jurisdictions expressly state the duty does apply.[57] Victoria is alone in not extending the duty this far, perhaps reflecting its earlier passage, uninformed by the Royal Commission’s recommendation in relation to this feature. Victoria should amend its legislation to apply the duty to situations where the knowledge or reasonable belief was gained during confession.

(c) Application to different settings

Three jurisdictions apply the duty to report child sexual offences both to situations involving two minors aged under 16, and to situations involving a minor and an adult. In contrast, Victoria only applies the duty to situations involving a minor and an adult. Accordingly, Victoria’s duty is narrower, perhaps out of a concern that otherwise it may inappropriately embrace consensual adolescents’ sexual activity. However, much child sexual abuse does occur between adolescents, suggesting this limitation is undesirable. Victoria should amend its legislation to apply the duty to situations involving minors.

(d) Age of the person who was the victim/survivor of the sexual offence

Victoria is alone in expressly limiting the duty to cases of child sexual abuse that have occurred only after a recent point in time. A network of provisions determines the relevant date.[58] As a result, Victoria’s duty applies only if the victim was born on or after 28 October 1998, dramatically confining its scope. In contrast, the other jurisdictions do not impose this restriction. The clear benefit of not applying a limit is so that situations of previously undisclosed serious criminal sexual offending can be detected, which may not only enable prosecution of offences involving the immediate survivor, but also of other cases involving the same offender and other victims. The disadvantage may be discerned as potentially leading to a large volume of reports to police, but to date this has not been the documented experience in other States, and in any event it is arguable that police are equipped to make judgments about the appropriate management of any such calls. Arguably, Victoria should amend its legislation to apply the duty to situations regardless of the victim’s age.

(e) Exception based on reasonable belief the person does not wish the information to be reported

An important exception exists where the person with the designated state of mind reasonably believes the person does not want the information reported to police. This exception exists in all five States and Territories. In New South Wales and Queensland, this basis for not reporting is designated as a species of a ‘reasonable excuse’,[59] but elsewhere it is a separate exception.[60]

The exception is similar across jurisdictions, although there are two important differences in scope. First, in Victoria, it applies to all alleged victims aged 16 or over, whereas elsewhere it applies only to those aged 18 and over. This age difference creates inequality in recognising adolescent capacity and autonomy. Jurisdictions that have limited this exception to those aged 18 and over have seldom explained in detail the reason for justifying this narrower scope.[61] However, Victoria justified its preference for a broader model privileging 16 year olds’ expressed preference based on an acknowledgment of developmental capacity and the age at which adolescents are legally empowered to make other important decisions.[62] This aspect of the law presents a significant policy choice. The Victorian position is justified by developmental evidence about the cognitive capacity of 16 year olds,[63] and it is true that at this age adolescents possess a number of other legal powers including the capacity to consent to medical treatment.[64] On balance, it is arguable that Victoria’s position is more consistent with both developmental science, and creates more coherence across legal domains. Accordingly, the better view would seem to be that the application of this exception to 16 year olds should be adopted in other jurisdictions.[65]

Second, Victoria is alone in applying this exception only if the information came from the victim of the offence and the victim requested the information not be disclosed.[66] There are two additional differences here, related to the source of the information, and the direct request. To consider the “direct request” difference first: it can be seen that while Victoria applies this exception more broadly based on the survivor’s age – 16, rather than 18 – there is an additional control on this exception requiring the survivor to make a direct request. In Victoria, this exception would only apply where a survivor of a child sexual offence aged at least 16 stated she or he did not want it reported to police. In contrast, in the other four jurisdictions, this excuse is engaged if the person with the knowledge or reasonable belief simply has a reasonable belief that the person does not wish the information to be reported,[67] without requiring a victim’s direct request. Therefore, this exception could apply in the other States and Territories in a broader range of circumstances where the person was aged 18 or over, and a reasonable belief was formed even without such a direct statement from the victim. This could occur, for example, if the victim made indirect statements capable of supporting a reasonable belief they did not wish the information to be reported. Other examples include situations where it is clear that the offender has died, or has already been prosecuted, or where the person otherwise makes it sufficiently clear they do not otherwise want to revisit the matter. It would also apply of course if the victim/survivor expressly stated this preference.

The advantage of Victoria’s narrower approach is that it is clear and avoids uncertainty of application. It also operates alongside the general provision which retains the openness of the reasonable excuse exception which does not exhaustively confine its scope. The disadvantage of Victoria’s narrower approach is that for this exception to be engaged, it requires the victim to make a direct statement when she or he may not wish to do so, and it may be otherwise clear that they do not wish it to be reported. The broader approach in the other jurisdictions, where the victim’s direct request is not required to engage this specific category of exception, has the advantage of not requiring the victim to make this statement or choice. However, the disadvantage of the broader approach is that it may create uncertainty about the scope of this exception, since it is unclear when such a belief will be reasonable. This aspect of the law is not susceptible of a simple solution. It is arguable that requiring the victim’s direct request is preferable, in that it avoids undesired dilution of the duty and even calculated attempts to avoid its operation. However, what may be a more desirable approach is to clarify through the use of legislative textual examples the types of situation in which such a reasonable belief will exist, and to specify that where any doubt exists about whether the exception operates, the duty applies.

(f) Exception based on a ‘reasonable excuse’ for not reporting

An important exception applies where the person with the designated state of mind has a ‘reasonable excuse’ for not reporting it to police. This general exception acknowledges that there are some circumstances where it is legitimate for the duty to be rendered inapplicable for reasons that are either normative (for example, where a competing ethical interest should take priority), or simply practical (for example, where the information has already been reported and there is a need to avoid duplication and administrative burden).

All five legislatures have incorporated the reasonable excuse core exception,[68] but have adopted different approaches to enumerate specific examples of when such a reasonable excuse will exist. In all States and Territories, the provisions clearly state they do not exhaustively define the concept of a ‘reasonable excuse’.[69] In Victoria, for example, s 327(2) provides a non-exhaustive definition,[70] and includes specific situations where a reasonable excuse exists, including where the person believes on reasonable grounds that the information has already been disclosed to police and the person has no further relevant information.[71] Other States and Territories adopt a similar approach, while not all provisions delineate these same examples (Table 3).

Table 3 Reasonable excuse provisions

Core reasonable excuse
provision
Belief on reasonable grounds the information is already known to police
Belief on reasonable grounds the information has otherwise been reported
Reasonable grounds to believe reporting would endanger the safety of another person (subjective) and this belief is reasonable in the circumstances (objective)
Victoria
s 327(3)
s 327(3)(b)
s 327(3)(b)
s 327(3)(a)
Both subjective and objective
NSW
s 316A(2)
s 316A(2)(a)
s 316A(2)(b)–(c)
s 316A(2)(d)
Partial: subjective only
ACT
s 6AA(2)(g)
s 66AA(2)(c)
s 66AA(2)(d)
s 66AA(2)(b)
Partial: subjective only
Tasmania
s 105A(4)
s 105(4)(c)
s 105(4)(c)
s 105A(4)(a)
Partial: subjective only
Queensland
s 229BC(4)
s 229BC(4)(a)
s 229BC(4)(b)
s 229BC(4)(b)
Both subjective and objective

It can be observed that the concept of a ‘reasonable excuse’ is used in a range of legislative settings. Its conceptual breadth provides it with an advantage of leaving open the categories of case where it can be applied; however, this also has the disadvantage of uncertainty.

The High Court of Australia has acknowledged that the term ‘reasonable excuse’ is a common legislative concept.[72] However, it is also clear from High Court jurisprudence that in each legislative instance, its proper construction depends on the purpose of the provision and the circumstances of the case. Accordingly, decisions concerning what constitutes a reasonable excuse in one setting do not provide guidance in other settings.[73] The majority of the High Court in Taikato confirmed that when legislatures enact defences such as ‘reasonable excuse’ they intend to give the courts the power to determine their content.[74] This residual flexibility is useful, although arguably wherever possible the legislature should incorporate as much clear guidance as possible and avoid requiring recourse to judicial consideration.

(i) The enumerated category of reasonable exception based on endangering a person’s safety

This enumerated category raises a particularly important issue. Here, comparative analysis reveals that there is a key difference in approach. In three jurisdictions – New South Wales, the ACT, and Tasmania – a subjective approach is employed, so that the reasonable excuse exception can be relied upon by the person based on a claim that subjectively, the person had reasonable grounds to believe that reporting would endanger the safety of either themselves or another person (other than the alleged offender). This approach gives broader scope to the application of the reasonable excuse concept in this domain of personal endangerment since it relies only on the person’s own state of mind and claim that this belief was reasonable. In contrast, two jurisdictions – Victoria and Queensland – adopt a two-limbed test that combines a subjective and an objective element. This requires that not only does the person claim that subjectively, they had reasonable grounds to believe that reporting would endanger the safety of another person (other than the alleged offender), but also that this belief is reasonable in the circumstances, which imports an objective test. This two-limbed test has the advantage of avoiding unduly limiting the operation of the duty, and of ruling out the prospect that a person could calculatingly avoid compliance with the duty based on a specious claim of potential danger to another person. Because of the nature of the duty and the problems it is designed to overcome, the two-limbed test is preferable. It is potentially arguable that even the one limbed test imports a degree of objectivity simply by use of the concept of reasonable grounds. However, a response to this may plausibly argue that it still provides too much leeway for inappropriate failure to report.[75] Accordingly, the two-limbed response is preferable, and New South Wales, the ACT, and Tasmania should amend this enumerated category of reasonable excuse to adopt the two-limbed test.

(ii) A note on consensual adolescent sexual activity

One clear example of a situation common to all Australian jurisdictions where a person may clearly have a reasonable excuse for not reporting a child sexual offence is where it is known that two adolescent peers in a genuinely consensual romantic relationship are engaging in developmentally normative sexual activity without any element of coercion. In some jurisdictions, where the age of consent is 16, sexual activity between two 15 year olds for example may technically constitute an offence. However, such activity is clearly not the object of the criminal law reporting provisions, is not properly classed as sexual abuse, and does not warrant intervention by police or the criminal justice system.[76] The reasonable excuse exception, properly applied, would serve to exclude this type of activity from the duty to report. However, its conceptual openness combined with the lack of the acknowledgment of this type of activity as an enumerated category of a situation that falls within the excuse, is a weakness and can particularly present difficulties for adults who deal with adolescents and who may develop knowledge of such activity, such as medical practitioners and teachers.[77] Arguably, a useful amendment would therefore be to add this activity as an enumerated example falling within the reasonable excuse exception.

E The Northern Territory

The preceding sections have detailed a comparative analysis of the nature of the provisions in five jurisdictions that have enacted duties to report child sexual offences in their criminal law. It is necessary to make some observations about the legislative context in the Northern Territory, which presents some interesting and unique characteristics.

In the Northern Territory, the situation is substantially different to the five jurisdictions analysed above, but there are some similarities. The Northern Territory has enacted a legislative duty, applied to all adults, to report specified types of child sexual offences. However, the duty is contained not within the criminal law, but within child protection legislation. Because of its location and its nature, the reporting duty is a hybrid of a criminal law-based reporting duty and a traditional child protection-based mandatory reporting law. The Care and Protection of Children Act 2007 (NT) s 26, which in its original form was first enacted in 1984,[78] predates Victoria’s landmark criminal law provisions by three decades, and makes all adult persons mandated reporters of a range of situations of child maltreatment.[79]

In this sense, the Northern Territory’s approach to child protection-based mandatory reporting duties differs from that of all other States and Territories, which instead designated members of specified occupational groups as mandated reporters for situations of specified child abuse and neglect, which primarily (although not exclusively in the case of sexual abuse) are aimed at circumstances within the family home. Moreover, the Northern Territory provisions possess other characteristics which mean they more closely resemble a criminal law-based reporting duty, rather than the child protection-based duty more traditionally adopted.[80]

In particular, s 24(a) sets out one of the purposes of the Act as being ‘to oblige members of the public to report cases of children at risk of harm or exploitation’. The concept of ‘harm’ is defined in s 15(1) as: ‘any significant detrimental effect caused by any act, omission or circumstance on: (a) the physical, psychological or emotional wellbeing of the child; or (b) the physical, psychological or emotional development of the child’. Section 15(2) states that ‘Without limiting subsection (1), harm can be caused by the following: (a) physical, psychological or emotional abuse or neglect of the child; (b) sexual abuse or other exploitation of the child; (c) exposure of the child to physical violence’. The concept of ‘exploitation’ is defined in s 16, and relates to a range of forms of sexual exploitation. Section 26 then applies the duty to any ‘person’. Furthermore, s 26(3) provides a defence to prosecution for failure to comply with the reporting duty if the person has ‘a reasonable excuse’. The ‘reasonable excuse’ concept is not further defined.

Accordingly, the Northern Territory context is primarily based on a child protection model, but also combines elements of the criminal law model. Yet, this approach has not been designed specifically to implement a comprehensive criminal model, and has not been specifically informed by the concerns raised by the Royal Commission. For these reasons, the current approach lacks several core features of the criminal model now being adopted elsewhere. It is arguably desirable for reforms to occur in the Northern Territory to create a separate criminal law reporting model, which can exist in parallel with the child protection model, especially given the Royal Commission’s recommendations and the expanding adoption of a dedicated criminal law model by other Australian States and Territories.

III Recommendations for reform

The comparative analysis conducted has revealed significant areas of commonality in approach, but has also disclosed a number of important variations in the legal models adopted by the five jurisdictions to date. Informed by the socio-legal context and the intention of these legal duties, and using principles of consistency and clarity as an evaluative lens, this comparative analysis leads to a number of conclusions about recommended reforms.

As detailed in Part IID1, the common elements of the laws should serve as a useful guide for

South Australia and Tasmania (and arguably the Northern Territory also) in drafting their legislation. These include:

• the duty only applies to adults, not to minors;

• the duty does not apply where it is known that the situation has already been reported to police;

• the duty does not apply where there otherwise is a lawful claim of right or privilege;

• the duty does not apply where the person has a reasonable excuse; and

• those who make reports are afforded protections from liability in civil, criminal and administrative processes.

As detailed in Part IID2(a)-(f), key domains of inconsistency in the laws in Victoria, New South Wales, Queensland, Tasmania and the ACT should be the subject of reforms. Furthermore, these issues need to be considered by the three remaining jurisdictions in their legislative drafting processes. The foregoing analysis has identified which approach is more justified in relation to each of these matters. To achieve desirable uniformity and sound legislative design across States and Territories, this article makes the following 10 recommendations about optimal approaches to these dimensions.

1. Core nature of the duty: The core nature of the duty in a form similar to that as expressed by New South Wales and Queensland should be preferred over its expression elsewhere. This model includes an objective element which ensures a person cannot evade operation of the duty by unjustifiably pleading subjective lack of knowledge or belief. Accordingly, the duty should apply so that an adult bears the duty when she or he knows, believes, or reasonably ought to know or believe that a child abuse has offence has been committed against another person. Therefore, Victoria, Tasmania and the ACT should make this amendment to align with New South Wales and Queensland.

2. Penalties: Ideally, penalties should be harmonised (see Part IID2(a)).

3. Prosecution: The ACT and Queensland should add this requirement for DPP approval (see Part IID2(a)).

4. Religious confession: Victoria should amend its legislation to apply the duty to situations where the knowledge or reasonable belief was gained during confession (see Part IID2(b).

5. Application to different settings of child sexual abuse: Victoria should amend its legislation to apply the duty to sexual offences involving minors (see Part IID2(c)).

6. Age of the person who was the victim/survivor of the sexual offence: Victoria should amend its legislation to apply the duty to all situations regardless of the victim’s age (see Part IID2(d)).

7. Exception based on reasonable belief the person does not wish the information to be reported. The first recommendation here is that the Victorian model should be adopted, enabling those aged 16 and over to express the wish that the offence not be reported (rather than being limited to those aged 18 and over); accordingly, New South Wales, Queensland, Tasmania and the ACT should make this amendment to align with Victoria (see Part IID2(e)).

8. Exception based on reasonable belief the person does not wish the information to be reported. The second recommendation here is that Victoria should not limit this exception only to situations where the victim/survivor expresses the wish for the offence not to be disclosed. Rather, the model elsewhere should be adopted, so that this exception applies if a reasonable belief exists that the victim/survivor does not wish the offence to be disclosed, where this belief can be supported either by such a direct express wish or by other sufficient grounds. The legislation should use textual examples to delineate the types of situation in which such a reasonable belief will exist, and should also specify that where any doubt exists about whether the exception operates, the duty applies (see Part IID2(e)).

9. Exception based on a ‘reasonable excuse’ for not reporting: enumerated category of reasonable exception based on endangering a person’s safety. The two-limbed approach preferred by Victoria and Queensland combining a subjective and an objective element is clearly preferable to the alternative approach based only on subjectivity. Accordingly, New South Wales, the ACT, and Tasmania should amend this enumerated category of reasonable excuse to adopt the two-limbed test (see Part IID2(f)(i)).

10. Exception based on a ‘reasonable excuse’ for not reporting: To remove any doubt about whether adults should report technical offences involving genuinely consensual adolescent sexual activity, the reasonable excuse provision should include an enumerated example to this effect (see Part IID2(f)(ii)).

IV Conclusion

Much has happened since Victoria passed the first criminal law reporting duty in 2014. Other Australian States and Territories have witnessed the strengths and limitations of Victoria’s model, and significantly, they have had the benefit of learning from the experience of the Royal Commission. All Australian States and Territories can draw from the insights gained from the Royal Commission’s unprecedented examination of child sexual abuse in institutional settings. Moreover, they are obliged to respond to its recommendations for reform, and should now be well-positioned to deliberate on how best those recommendations can be implemented.

These new criminal law duties are an important acknowledgment of citizens’ duties to take positive action to protect the rights of children in circumstances of serious criminal offending.

It is important to note that the creation of these legal duties assists to create a new social norm to encourage a certain type of protective behaviour; they are not simply provisions created to punish failure to comply. In addition, now, more than ever, societal conditions are under immense strain and new challenges continue to emerge. The technological revolution, and the effects of the COVID-19 pandemic, for example, may be associated with increases in some forms of serious sexual offences against children, including through online sexual exploitation.

Australia is at the forefront of socio-legal responses to child sexual abuse, and much of this progress has been catalysed by government inquiries and the Royal Commission’s sustained forensic analysis. The evolution and geographical spread of criminal law duties in this context constitute a further important advance in protecting children from sexual abuse, although challenges remain in ensuring our legislative approaches are soundly designed. This article has identified a range of reforms that can further strengthen and harmonise Australia’s legislative framework. Other nations may also draw from the Australian experience to better support children in responding to sexual abuse.

Appendix 1: Criminal law duty to report child sexual offences, imposed on all adults – full provisions

ACT
Inserted by
Royal Commission Criminal Justice Legislation Amendment Act 2019 (ACT) s 7
s 66AA Failure to report child sexual offence
(1) A person commits an offence if the person—
(a) is an adult; and
(b) obtains information that leads to the person reasonably believing that a sexual offence has been committed against a child; and
(c) does not, as soon as practicable after forming the belief, give the information to a police officer.
Maximum penalty: imprisonment for 2 years.
(2) Subsection (1) does not apply if—
(a) the person—
(i) obtains the information when the alleged victim was no longer a child; and
(ii) reasonably believes the alleged victim does not want a police officer to be told about the person’s belief; or
(b) the person reasonably believes that giving the information to a police officer would endanger the safety of a person (other than a person reasonably believed to have committed the sexual offence); or
(c) the person reasonably believes a police officer already has the information; or
(d) the person—
(i) is a mandated reporter under the Children and Young People Act 2008, section 356 (2); and
(ii) has reported the information under that Act, division 11.1.2 (Reporting abuse and neglect of children and young people) or reasonably believes someone else has done so; or
(e) subject to subsection (3), giving the information to a police officer would disclose information in relation to which privilege may be claimed under a law in force in the Territory; or
(f) the information is generally available in the public domain; or
(g) the person has another reasonable excuse.
(3) A person who is or was a member of the clergy of a church or religious denomination is not entitled to refuse to give information under subsection (1) because the information was communicated to the member during a religious confession.
(4) The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section.
(5) If a person gives information mentioned in subsection (1) to a police officer honestly and without recklessness—
(a) giving the information is not a breach of—
(i) confidence; or
(ii) professional etiquette or ethics; or
(iii) a rule of professional conduct; and
(b) the person does not incur civil or criminal liability only because of giving the information.
(6) Subsection (5) does not apply if giving the information would be a breach of client legal privilege.
(7) This section applies to information obtained on or after the commencement of this section, including information about a sexual offence that occurred before the commencement of this section.
(8) In this section:
applied provisions—see the Criminal Code, section 10 (1).
religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the member’s church or religious denomination.
sexual offence means—
(a) an offence against—
(i) this part; or
(ii) any other provision prescribed by regulation; or
(b) an offence against a sexual offence provision of this Act previously in force.
NSW
Inserted by
316A Concealing child abuse offence
(1) An adult:
(a) who knows, believes or reasonably ought to know that a child abuse offence has been committed against another person, and
(b) who knows, believes or reasonably ought to know that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and
(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force as soon as it is practicable to do so, is guilty of an offence.
Maximum penalty: Imprisonment for:
(a) 2 years--if the maximum penalty for the child abuse offence is less than 5 years imprisonment, or
(b) 5 years--if the maximum penalty for the child abuse offence is 5 years imprisonment or more.
(2) For the purposes of subsection (1), a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force if:
(a) the person believes on reasonable grounds that the information is already known to police, or
(b) the person has reported the information in accordance with the applicable requirements under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 or Part 4 of the Children’s Guardian Act 2019 or believes on reasonable grounds that another person has done so, or
(c) immediately before the repeal of Part 3A of the Ombudsman Act 1974by the Children’s Guardian Act 2019, the person had reported the information to the Ombudsman under that Part, or believed on reasonable grounds that another person had done so, or
(d) the person has reasonable grounds to fear for the safety of the person or any other person (other than the offender) if the information were to be reported to police, or
(e) the information was obtained by the person when the person was under the age of 18 years, or
(f) the alleged victim was an adult at the time that the information was obtained by the person and the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police, or
(g) the information is about an offence under section 60E that did not result in any injury other than a minor injury (for example, minor bruising, cuts or grazing of the skin) and the alleged offender and the alleged victim are both school students who are under the age of 18 years, but only if the person is a member of staff of:
(i) a government school and the person has taken reasonable steps to ensure that the incident reporting unit (however described) of the Department of Education is made aware of the alleged offence, or
(ii) a non-government school and the person has taken reasonable steps to ensure that the principal or governing body of the school is made aware of the alleged offence.
(3) Subsection (2) does not limit the grounds on which it may be established that a person has a reasonable excuse for failing to bring information to the attention of a member of the NSW Police Force.
(4) A person who solicits, accepts or agrees to accept any benefit for the person or any other person in consideration for doing anything that would be an offence under subsection (1) is guilty of an offence.
Maximum penalty: Imprisonment for:
(a) 5 years—if the maximum penalty for the child abuse offence is less than 5 years imprisonment, or
(b) 7 years—if the maximum penalty for the child abuse offence is 5 years imprisonment or more.
(5) It is not an offence under subsection (4) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.
(6) A prosecution for an offence under subsection (1) is not to be commenced against a person without the approval of the Director of Public Prosecutions in respect of information obtained by an adult in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.
(7) The regulations may prescribe a profession, calling or vocation as referred to in subsection (6).
(8) The reporting of information by a person in good faith under this section:
(a) does not constitute unprofessional conduct or a breach of professional ethics on the part of the person, and
(b) does not make the person subject to any civil liability in respect of it (including liability for defamation).
(9) In this section:
child means a person who is under the age of 18 years.
child abuse offence means:
(a) murder or manslaughter of a child (including under section 22A), or
(b) an offence under section 27, 29, 33, 35, 37, 38, 38A, 39, 41, 41A, 44, 45, 45A, 46, 59, 60E, 86 or 91J or Division 10, 10A, 10B or 15 of Part 3 where the alleged victim is a child, or
(c) an offence under section 42, 43, 43A, 91G or 91H, or
(d) an offence under a provision of this Act set out in Column 1 of Schedule 1A where the alleged victim was a child, or
(e) an offence of attempting to commit an offence referred to in paragraphs (a)–(d), or
(f) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(e).
government school and non-government school have the same meanings as in the Education Act 1990.
member of staff, school and school student have the same meanings as in Division 8B of Part 3.
obtain includes receive or become aware of.
NT
Section 26 substituted by the Care and Protection of Children Amendment Act 2009, commenced 1 September 2009.
Original s 26 created a similar obligation, commenced 7 May 2008
15 Harm to child
(1) Harm to a child is any significant detrimental effect caused by any act, omission or circumstance on:
(a) the physical, psychological or emotional wellbeing of the child; or
(b) the physical, psychological or emotional development of the child.
(2) Without limiting subsection (1), harm can be caused by the following:
(a) physical, psychological or emotional abuse or neglect of the child;
(b) sexual abuse or other exploitation of the child;
(c) exposure of the child to physical violence.
Example - A child witnessing violence between the child's parents at home.
16 Exploitation of child
(1) Exploitation of a child includes sexual and any other forms of exploitation of the child.
(2) Without limiting subsection (1), sexual exploitation of a child includes:
(a) sexual abuse of the child; and
(b) involving the child as a participant or spectator in any of the following:
(i) an act of a sexual nature;
(ii) prostitution;
(iii) a pornographic performance.
26 Reporting obligations
(1) A person is guilty of an offence if the person:
(a) believes, on reasonable grounds, any of the following:
(i) a child has suffered or is likely to suffer harm or exploitation;
(ii) a child aged less than 14 years has been or is likely to be a victim of a sexual offence;
(iii) a child has been or is likely to be a victim of an offence against section 128 of the Criminal Code; and
(b) does not, as soon as possible after forming that belief, report (orally or in writing) to the CEO or a police officer:
(i) that belief; and
(ii) any knowledge of the person forming the grounds for that belief; and
(iii) any factual circumstances on which that knowledge is based.
Maximum penalty: 200 penalty units.
(2) A person is guilty of an offence if the person:
(a) is a health practitioner or someone who performs work of a kind that is prescribed by regulation; and
(b) believes, on reasonable grounds:
(i) that a child aged at least 14 years (but less than 16 years) has been or is likely to be a victim of a sexual offence; and
(ii) that the difference in age between the child and alleged sexual offender is more than 2 years; and
(c) does not, as soon as possible after forming that belief, report (orally or in writing) to the CEO or a police officer:
(i) that belief; and
(ii) any knowledge of the person forming the grounds for that belief; and
(iii) any factual circumstances on which that knowledge is based.
Maximum penalty: 200 penalty units.
Example for subsection (2)(b)(ii) - A health practitioner believes, on reasonable grounds, that a child who has just turned 14 is likely to be a victim of a sexual offence committed by someone aged 16 and a half.
(3) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant has a reasonable excuse.
(4) This section has effect despite any other provision in this Act or another law of the Territory.
Qld
Comm 5 July 2021
Inserted by Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020
229BC Failure to report belief of child sexual offence committed in relation to child
(1) This section applies to an adult if—
(a) the adult gains information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child by another adult; and
(b) at the relevant time, the child is or was—
(i) under 16 years; or
(ii) a person with an impairment of the mind.
(2) If, without reasonable excuse, the adult fails to disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought reasonably to have been, formed, the adult commits a misdemeanour.
Maximum penalty—3 years imprisonment.
(3) For subsection (1), it does not matter that the information was gained by the adult during, or in connection with, a religious confession.
(4) Without limiting what may be a reasonable excuse for subsection (2), an adult has a reasonable excuse if—
(a) the adult believes on reasonable grounds that the information has already been disclosed to a police officer; or
(b) the adult has already reported the information under any of the following
provisions, or believes on reasonable grounds that another person has done or will do so— (i) the Child Protection Act 1999, chapter 2, part 1AA; (ii) the Education (General Provisions) Act 2006, chapter 12, part 10; (iii) the Youth Justice Act 1992, part 8 or 9; or
(c) the adult gains the information after the child becomes an adult (the alleged victim), and the adult reasonably believes the alleged victim does not want the information to be disclosed to a police officer; or
(d) both of the following apply—
(i) the adult reasonably believes disclosing the information to a police officer would endanger the safety of the adult or another person, other than the
alleged offender, regardless of whether the belief arises because of the fact of the disclosure or the information disclosed;
(ii) failure to disclose the information to a police officer is a reasonable response in the circumstances.
(5) An adult who, in good faith, discloses information mentioned in subsection (1)(a) to a police officer is not liable civilly, criminally or under an administrative process for making the disclosure.
(6) In this section—
relevant time, in relation to the child sexual offence mentioned in subsection (1)(a), means the time that the adult—
(a) believes to be the time of commission of the offence; or
(b) ought reasonably to believe to be the time of commission of the offence.
SA
No provision.
Tas
Criminal Code s 105A
Inserted by
Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018 s 7
105A Failing to report the abuse of a child
(1) In this section –
abuse offence means the following:
(a) an offence against section 124, 125, 125A, 125B, 125C, 125D, 126, 127, 129, 130, 130A, 133, 157, 158, 159, 165A, 166, 170, 172, 175, 176, 177, 178, 178A or 178B;
(b) an offence under chapter XIX or XX;
(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b);
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraph (a), (b) or (c);
child means a person under the age of 18 years;
proper authority has the same meaning as in section 162A;
religious confession has the same meaning as in section 127 of the Evidence Act 2001.
(2) A person is guilty of a crime if the person –
(a) has information that leads the person to form a reasonable belief that an abuse offence has been committed against another person who was a child at the time of the alleged offence; and
(b) fails without reasonable excuse to disclose that information to a police officer as soon as practicable.
Charge: Failing to report the abuse of a child.
(3) A person is not guilty of an offence under subsection (2) if –
(a) the information was obtained by that person when he or she was a child; or
(b) the alleged victim of the offence to which the information relates had attained the age of 18 years at the time the information was obtained by the person and the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to a police officer.
(4) Without limiting the matters that may constitute a reasonable excuse for the purposes of subsection (2), a person has a reasonable excuse for failing to comply with that subsection if –
(a) the person fears on reasonable grounds that disclosing the information would endanger the safety of any person (other than the person reasonably believed to have committed, or to have been involved in, the child abuse offence); or
(b) subject to subsection (5), reporting the information would disclose information in respect of which there is a lawful claim or right of privilege; or
(c) the person believes on reasonable grounds that –
(i) another person has already reported the information to a proper authority; or
(ii) a proper authority already has the information; or
(d) the information is generally available to members of the public.
(5) Despite section 127 of the Evidence Act 2001, a member of the clergy of any church or religious denomination is not entitled to refuse to disclose information under subsection (2) on the grounds that the information was communicated to that member of the clergy during a religious confession.
(6) A prosecution for an offence against subsection (2) is not to be commenced without the written authority of the Director of Public Prosecutions.
Vic
Inserted by
Crimes Amendment (Protection of Children) Act
2014 (Vic), commenced 27 October 2014.
327 Failure to disclose sexual offence committed against child under the age of 16 years
(1) In this section—
interests includes reputation, legal liability and financial status;
organisation includes a body corporate or an unincorporated body or association, whether the body or association—
(a) is based in or outside Australia; or
(b) is part of a larger organisation;
sexual offence means—
(a) an offence committed under Subdivision (8A), (8B), (8C), (8E), (8F) or (8FA) of Division 1 of Part I on or after 1 July 2017; or
(b) an offence committed under Subdivision (8D) of Division 1 of Part I on or after 1 July 2017 other than an offence that only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A(1), where the torture, cruelty or abuse is not sexual; or
Example
An offence committed under Subdivision (8D) of Division 1 of Part I that relates to child abuse material that depicts or describes a child as a victim of sexual abuse.
(c) an offence committed before 1 July 2017 under Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) as then in force; or
(d) an attempt to commit an offence referred to in paragraph (a), (b) or (c); or
(e) an assault with intent to commit an offence referred to in paragraph (a), (b) or (c).
(2) Subject to subsections (5) and (7), a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.
Penalty: 3 years imprisonment.
(3) For the purposes of subsection (2) and without limiting that subsection, a person has a reasonable excuse for failing to comply with that subsection if—
(a) the person fears on reasonable grounds for the safety of any person (other than the person reasonably believed to have committed, or to have been involved in, the sexual offence) were the person to disclose the information to police (irrespective of whether the fear arises because of the fact of disclosure or the information disclosed) and the failure to disclose the information to police is a reasonable response in the circumstances; or
(b) the person believes on reasonable grounds that the information has already been disclosed to police by another person and the firstmentioned person has no further information.
Example - A person may believe on reasonable grounds that the information has already been disclosed to police by another person if the person has made a report disclosing all of the information in his or her possession in compliance with mandatory reporting obligations under the Children, Youth and Families Act 2005.
(4) For the purposes of subsection (2) and without limiting that subsection, a person does not have a reasonable excuse for failing to comply with that subsection only because the person is concerned for the perceived interests of—
(a) the person reasonably believed to have committed, or to have been involved in, the sexual offence; or
(b) any organisation.
(5) A person does not contravene subsection (2) if—
(a) the information forming the basis of the person's belief that a sexual offence has been committed came from the victim of the alleged offence, whether directly or indirectly; and
(b) the victim was of or over the age of 16 years at the time of providing that information to any person; and
(c) the victim requested that the information not be disclosed.
(6) Subsection (5) does not apply if—
(a) at the time of providing the information, the victim of the alleged sexual offence—
(i) has an intellectual disability (within the meaning of the Disability Act 2006); and
(ii) does not have the capacity to make an informed decision about whether or not the information should be disclosed; and
(b) the person to whom the information is provided is aware, or ought reasonably to have been aware, of those facts.
(7) A person does not contravene subsection (2) if—
(a) the person comes into possession of the information referred to in subsection (2) when a child; or
(b) the information referred to in subsection (2) would be privileged under Part 3.10 of Chapter 3 of the Evidence Act 2008; or
(c) the information referred to in subsection (2) is a confidential communication within the meaning of section 32B of the Evidence (Miscellaneous Provisions) Act 1958; or
(d) the person comes into possession of the information referred to in subsection (2) solely through the public domain or forms the belief referred to in subsection (2) solely from information in the public domain; or
(e) the person is a police officer acting in the course of his or her duty in respect of the victim of the alleged sexual offence; or
(f) the victim of the alleged sexual offence has attained the age of 16 years before the commencement of section 4 of the Crimes Amendment (Protection of Children) Act 2014.
(8) A prosecution for an offence under subsection (2) must not be commenced without the consent of the Director of Public Prosecutions.
(9) In determining whether to consent to a prosecution for an offence under subsection (2), the Director of Public Prosecutions must consider whether the alleged offender has been subjected to family violence (within the meaning of the Family Violence Protection Act 2008) that is relevant to the circumstances in which the offence is alleged to have been committed.
WA
No provision.

***


[*] Ben Matthews is a Professor at the School of Law, Queensland University of Technology, member of th Australian Centre for Health Research (QUT) and Adjunct Professor at Johns Hopkins University.

[1] Marije Stoltenborgh, Marinus H van Ijzendoorn, Eveline M Euser and Marian J Bakermans-Kranenburg, ‘A global perspective on child sexual abuse: Meta-analysis of prevalence around the world’ (2011) 16(2) Child Maltreatment 79–101. This figure of 12.7% comprised 18.0% of girls and 7.6% of boys.

[2] Michael Dunne, David Purdie, Michelle Cook, Frances Boyle and Jake Najman, ‘Is child sexual abuse declining? Evidence from a population-based survey of men and women in Australia’ (2003) 27 Child Abuse & Neglect 141–52.

[3] Stephen Rosenman and Bryan Rodgers, ‘Childhood adversity in an Australian population’ (2004) 39(9) Social Psychiatry and Psychiatric Epidemiology 695–702.

[4] Elya Moore, Helena Romaniuk, Craig Olsson, Yasmin Jayasinghe, John Carlin and George Patton, ‘The prevalence of childhood sexual abuse and adolescent unwanted sexual contact among boys and girls living in Victoria, Australia’ (2010) 34 Child Abuse & Neglect 379–85.

[5] A review of studies of disclosure found that 60–70% of adult survivors of child sexual abuse said they did not disclose their abuse during childhood: Kamala London, Maggie Bruck, Stephen Ceci and Daniel Shuman, ‘Disclosure of child sexual abuse: A review of the contemporary empirical literature’ in Margaret-Ellen Pipe, Michael E Lamb, Yael Orbach and Ann-Christin Cederborg (eds), Child sexual abuse: Disclosure, delay, and denial (Routledge, 2007) 11–39. See also, eg, Scott D Easton, ‘Disclosure of Child Sexual Abuse Among Adult Male Survivors’ (2013) 41(4) Clinical Social Work Journal 344–55, who studied 487 men whose mean age of onset of child sexual abuse was 10.3 years, and found that on average, it took participants 21 years to tell someone, and the mean age at the time of first disclosure was 32.

[6] Ramona Alaggia, Delphine Collin-Vézina and Rusan Lateef, ‘Facilitators and barriers to child sexual abuse (CSA) disclosures: A research update (2000-2016)’ (2017) 21 Trauma, Violence & Abuse 1–26.

[7] Hereafter referred to as the Royal Commission.

[8] Australian Government Royal Commission Into Institutional Responses to Child Sexual Abuse, Final report, Vol. 4 (Sydney, 2017).

[9] Australian Government Royal Commission into Institutional Responses to Child Sexual Abuse (2014). Interim report, Vol. 1 (Sydney, 2014).

[10] Easton, ibid.

[11] J Wood, Report of the Special Committee of Inquiry into Child Protection Services in New South Wales (Government of the State of New South Wales, 2008).

[12] R Wild and P Anderson, Ampe Akelyernemane Meke Mekarle (‘Little Children Are Sacred’): Report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (Darwin, 2007).

[13] T Carmody, Taking responsibility: A roadmap for Queensland child protection (Brisbane, 2013).

[14] See, eg, Victorian Family and Community Development Committee, Betrayal of Trust: Inquiry Into the Handling of Child Abuse by Religious and Other Nongovernment Organisations (Melbourne, 2013); see also P Cummins, D Scott and B Scales, Report of the Protecting Victoria’s Vulnerable Children Inquiry (State of Victoria Department of Premier and Cabinet, 2012). The significance of the Betrayal of Trust Inquiry’s recommendation is discussed below.

[15] Royal Commission Into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (Sydney, 2017).

[16] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[17] Article 19 provides: 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

[18] United Nations Committee on the Rights of the Child, General Comment No. 13 on the Right of the Child to Freedom from All Forms of Violence (art. 19) (2011). The General Comment states (19–20):

The Committee strongly recommends that all States parties develop safe, well-publicized, confidential and accessible support mechanisms for children, their representatives and others to report violence against children, including through the use of 24-h toll-free hotlines and other ICTs. The establishment of reporting mechanisms includes: (a) providing appropriate information to facilitate the making of complaints; (b) participation in investigations and court proceedings; (c) developing protocols which are appropriate for different circumstances and made widely known to children and the general public; (d) establishing related support services for children and families; and (e) training and providing ongoing support for personnel to receive and advance the information received through reporting systems. Reporting mechanisms must be coupled with, and should present themselves as help-oriented services offering public health and social support, rather than as triggering responses which are primarily punitive ... In every country, the reporting of instances, suspicion or risk of violence should, at a minimum, be required by professionals working directly with children. When reports are made in good faith, processes must be in place to ensure the protection of the professional making the report.

[19] United Nations General Assembly, Sustainable Development Goals (United Nations, 2015) <https://sustainabledevelopment.un.org/>.

[20] See, eg, Crimes Act 1900 (ACT) ss 6465; Crimes Act 1900 (NSW) s 91H, 91FA-FB; Criminal Code (NT) s 125B; Criminal Code 1899 (Qld) ss 228A-E; Criminal Law Consolidation Act 1935 (SA) ss 6263; Criminal Code 1924 (Tas) s 1A; ss130-130G; Crimes Act 1958 (Vic) ss 51C, 51D, 51G; Criminal Code Act 1913 (WA) ss 217-221A; and see also Criminal Code Act 1995 (Cth) Chapter 10. See further Clare McGlynn and Erika Rackley, ‘Image-based sexual abuse’ (2017) 37(3) Oxford Journal of Legal Studies 534; Anastasia Henry and Nicola Powell, ‘Sexual violence in the digital age: The scope and limits of criminal law’ (2016) 25 Social & Legal Studies 397; Nicola Henry, Asher Flynn and Anastasia Powell, ‘Image-based sexual abuse: Victims and perpetrators’ (2019) 572 Trends & Issues in Crime and Criminal Justice 1.

[21] See Ben Mathews and Elizabeth Dallaston, ‘Reform of Civil Statutes of Limitation for Child Sexual Abuse Claims: Seismic change and ongoing challenges’ [2020] UNSWLawJl 14; (2020) 43(2) University of New South Wales Law Journal 386.

[22] See Ben Mathews and Delphine Collin-Vézina, ‘Child Sexual Abuse: Toward a Conceptual Model and Definition’ (2019) 20(2) Trauma, Violence, & Abuse 131. The authors developed a model whereby child sexual abuse was understood as including a range of contact and non-contact sexual acts by any adult or child in a position of power over the victim, done to obtain sexual gratification for the person or another person whether immediately or deferred in time and space, when the child either does not have capacity to provide consent, or has capacity but does not provide consent.

[23] Martha Nussbaum, Creating Capabilities (Harvard University Press, 2011). Nussbaum declared (148): ‘Some issues are, or should be, easy: we should all agree that domestic violence and child sexual abuse should be aggressively policed by the state’.

[24] Lord Thomas Bingham, ‘The rule of law’ (2007) 66(1) Cambridge Law Journal 67–85, 69.

[25] Anthony Gray, ‘Is the Seal of the Confessional Protected by Constitutional or Common Law?’ [2018] MonashULawRw 4; (2018) 44(1) Monash University Law Review 112–150.

[26] Ben Mathews, ‘Legal Duties of Researchers to Protect Participants in Child Maltreatment Surveys: Advancing Legal Epidemiology’ (2022) 45(2) University of New South Wales Law Journal (in press).

[27] Ben Mathews and Lena Sanci, ‘Doctors’ Criminal Law Duty to Report Consensual Sexual Activity Between Adolescents: Legal and Clinical Issues’ (2021) 215(3) Medical Journal of Australia 109–113.e1.

[28] Ben Mathews, ‘A Taxonomy of Duties to Report Child Sexual Abuse: Legal Developments Offer New Ways to Facilitate Disclosure’ (2019) 88 Child Abuse & Neglect 337–47; Ben Mathews, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (Springer, 2019).

[29] The analysis presented here covers the law as current to 28 September 2021.

[30] In English law, for example, the longstanding reluctance to impose positive duties on citizens has recently witnessed some developments, as exemplified by duties to report female genital mutilation: Female Genital Mutilation Act 2003 (UK) s 5B, inserted by the Serious Crime Act 2015 (UK) s 74. However, even these duties are imposed only on selected professionals rather than all members of the public, and there remain no comparative criminal law duties to report child sexual offences more generally.

[31] Andrew Ashworth, Positive obligations in criminal law (Hart, 2013), 41.

[32] See further, eg, Andrew Ashworth, ‘Positive duties, regulation and the criminal sanction’ (2017) 133 Law Quarterly Review 606–30; Andrew Ashworth, ‘A new generation of omissions offences?’ (2018) 5 Criminal Law Review 354–64.

[33] For example, this element of personal benefit is also contained in the Crimes Act 1958 (Vic) s 326, and the Criminal Code 1924 (Tas) s 102.

[34] See New South Wales, Hansard, Legislative Assembly, 6 June 2018, 4 (Mr Speakman, Attorney-General, Second reading), where the Attorney-General stated: ‘However, section 316 is not well adapted to this policy purpose. It requires a high standard of knowledge before a person can be prosecuted—the prosecution must show that the person knows or believes that an offence has been committed. This may not address the wilful blindness by those in authority uncovered by the royal commission.’

[35] The case involved the prosecution of Archbishop Philip Wilson for breaching the New South Wales concealment offence in s 316 as it stood at the time. In May 2018, Philip Wilson, the Archbishop of Adelaide, was found guilty of concealing his knowledge of child sexual abuse committed by a priest named James Fletcher against two altar boys in the 1970s. Fletcher had earlier been found guilty of nine counts of child sexual abuse and died in prison in 2006. Wilson claimed he could not remember either boy telling him they were abused, and his counsel argued there was no evidence to prove he was told about the abuse, believed it was true, or remembered being told about it. However, the Court believed the testimony of Peter Creigh, one of the altar boys. Mr. Creigh testified he had trusted that Wilson, who at the time was an assistant priest, would take appropriate action after he told him that Fletcher had abused him repeatedly in 1971 when he was 10. He testified that Wilson had a “look of horror” on his face when he heard this, but took no action and did not tell police. The other former altar boy said he went to confession in 1976 when he was aged 11, and told Wilson that Fletcher had abused him. He testified that Wilson refused to believe him because Fletcher “was a good bloke”, and ordered the boy out of the confessional with a demand to say prayers as an act of contrition. On 12 February 2015, in the Local Court, Stone LCM refused an application by Archbishop Wilson to quash or permanently stay a court attendance notice. An appeal against this decision was dismissed in Wilson v Department of Public Prosecutions (NSW) [2016] NSWSC 1458 (Schmidt J). This decision by Schmidt J was also then appealed, and dismissed, by the New South Wales Court of Appeal (Wilson v Director of Public Prosecutions (NSW) [2017] NSWCA 128). The issue before the Court was whether at the time Wilson was alleged to have withheld information relevant to Father Fletcher’s alleged offence, s 81 (indecent assault on male) was a “serious indictable offence” within the meaning of the Crimes Act s 4. The Court of Appeal dismissed the appeal. However, in December 2018, Wilson’s conviction was overturned on appeal in the District Court by Ellis DCJ, with a core part of the Court’s reasoning concluding there was not sufficient evidence of the relevant state of mind: R v Wilson [2018] NSWDC 487, [86–96].

[36] Victorian Family and Community Development Committee, Betrayal of Trust: Inquiry Into the Handling of Child Abuse by Religious and Other Nongovernment Organisations (2013, recommendation 23.1) <http://www.parliament.vic.gov.au/component/content/article/340-inquiry-into-the-handling-of-child-abuse-by-religious-and-other-organisations/1788-report> .

[37] See, eg, Victoria, Hansard, House of Assembly, 26 March 2014, 912–4 (Mr Clark, Attorney-General, Second reading).

[38] As do other States and Territories, Victoria has the power to create legislation with extra-territorial application for the peace, order and good government of the state: Australia Act 1986 (Cth) s 2(1). A law creating an offence of a failure to report sexual offences against children is within those parameters, and the commission of the sexual offence within Victoria provides the requisite real connection with the jurisdiction. The terms of the provision expressly contradict both the common law presumption of territorial limitations and the provisions in the Interpretation of Legislation Act 1984 (Vic) which stipulates that ‘locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria’: s 48(2). Section 327 only requires the reporting of sexual offences committed in Victoria, and creates no obligation to disclose beliefs about sexual offences committed outside Victoria.

[39] Royal Commission, Criminal Justice Report, above n 15, recommendation 33. Recommendation 35 was that the duty to report should not be subject to any exemption for religious confession.

[40] Queensland, Hansard, 13 August 2020, 2118-19 (Ms Dath, Attorney-General and Minister for Justice, Second reading).

[41] Office of the Director of Public Prosecutions for the Australian Capital Territory, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 3–5, https://www.dpp.act.gov.au/__data/assets/pdf_file/0006/715506/PROSECUTION-POLICY-OF-THE-AUSTRALIAN-CAPITAL-TERRITORY.pdf; Office of the Director of Public Prosecutions for New South Wales, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (2021) 8–10, https://www.odpp.nsw.gov.au/sites/default/files/attachments/f-prosecution_guidelines.pdf (‘New South Wales Guidelines’); Office of the Director of Public Prosecutions for the Northern Territory, Guidelines of the Director of Public Prosecutions 2–3, https://dpp.nt.gov.au/__data/assets/pdf_file/0005/574124/DPP-Guidelines-Current-2016.pdf; Office of the Director of Public Prosecutions Queensland, Directors Guidelines (30 June 2016) 2–4, https://www.justice.qld.gov.au/__data/assets/pdf_file/0015/16701/directors-guidelines.pdf; Director of Public Prosecutions South Australia, Statement of Prosecution Policy & Guidelines (October 2014) 5–8, http://www.dpp.sa.gov.au/wp-content/uploads/2015/03/DPP-Prosecution-and-Policy-Guidelines.pdf; Office of the Director of Public Prosecutions for Tasmania, Prosecutions Policy and Guidelines (Updated 23 October 2019) 7–9, https://www.dpp.tas.gov.au/__data/assets/pdf_file/0006/570858/DPP-prosecution-guidelines6.pdf; Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 2–4, http://www.opp.vic.gov.au/Resources/Policies; Office of the Director of Public Prosecutions for Western Australia, Statement of Prosecution, Policy Guidelines 6–9, (1 September 2018) https://www.dpp.wa.gov.au/_files/publications/Statement-of-Prosecution-Policy-and-Guidelines.pdf.

[42] But not always: see the discussion of Victoria’s more limited approach below.

[43] Amending legislation was first introduced in 2014 in Victoria, and from 2018 onwards in other States and Territories: Crimes Amendment (Protection of Children) Bill 2014 (Vic); Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW); Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018 (Tas); Royal Commission Criminal Justice Legislation Amendment Bill 2019 (ACT); Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill 2019 (Qld).

[44] Crimes Act 1900 (ACT) s 66AA Failure to report child sexual offence (commenced 1 September 2019); Crimes Act 1900 (NSW) s 316A Concealing child abuse offence (commenced 31 August 2018); Criminal Code Act 1899 (Qld) s 229BC Failure to report belief of child sexual offence committed in relation to child (commenced 5 July 2021); Criminal Code 1924 (Tas) s 105A Failing to report the abuse of a child (commenced 2 October 2019); Crimes Act 1958 (Vic) s 327 Failure to disclose sexual offence committed against child under the age of 16 years (commenced 27 October 2014).

[45] Note that to date there is no judicial consideration of the new duty in relation to sexual offences. In New South Wales, the duty in s 316A was referred to obliquely in Ellison & Mallick and Anor [2018] FamCA 603, a case which turned on other issues. However, the duty to report physical abuse was the subject of judicial consideration in the New South Wales case of R v George (a pseudonym) [2021] NSWDC 18 (16 February 2021), where the accused was convicted and sentenced to imprisonment for 4 years. After discounts for a guilty plea and other factors including remorse, the term of imprisonment was 2 years 7 months with a non-parole period of 1 year 8 months. The case concerned the father of a six week old infant who was aware that his partner, the infant’s mother, had committed serious life threatening physical assaults on the infant, yet failed to notify the police. Colefax SC DCJ stated: “The abuse of children – whether psychological or physical and whether sexual or non-sexual – is abhorrent and the Courts must impose stern sentences to protect children from such abuse – especially where that abuse is inflicted by their own parents and in their own homes.”

[46] But see the position in the Northern Territory as outlined below.

[47] New South Wales, Hansard, above n 34, 6. This may have been influenced by the outcome in the case of Wilson.

[48] All States and Territories’ interpretation legislation recognise that legislative provisions must be interpreted to give effect to the statute’s purpose: Legislation Act 2001 (ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act 1978 (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18. The contemporary approach to statutory interpretation must consider the legislative text, context and purpose, and in doing so, the context of the provision must be considered at the outset: see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, where Kiefel CJ, Nettle and Gordon JJ stated (368): “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.”

[49] Crimes Act 1900 (ACT) s 66AA(1)(a); Crimes Act 1900 (NSW) s 316A(1); Criminal Code Act 1899 (Qld) s 229BC(1); Criminal Code Act 1924 (Tas) s 105A(3)(a); Crimes Act 1958 (Vic) ss 327(2), 327(7)(a).

[50] Crimes Act 1900 (ACT) s 66AA(2)(c); Crimes Act 1900 (NSW) s 316A(2)(a); Criminal Code Act 1899 (Qld) s 229BC(4)(a); Criminal Code Act 1924 (Tas) s 105A(4)(c); Crimes Act 1958 (Vic) s 327(3)(b).

[51] Crimes Act 1900 (ACT) s 66AA(6); Crimes Act 1900 (NSW) s 316A(6)-(7) (although not express); Criminal Code Act 1924 (Tas) s 105A(4)(b); Crimes Act 1958 (Vic) s 327(7)(b)-(c).

[52] Crimes Act 1900 (ACT) s 66AA(2)(b); Crimes Act 1900 (NSW) s 316A(2)(d); Criminal Code Act 1899 (Qld) s 229BC(4)(d); Criminal Code Act 1924 (Tas) s 105A(4)(a); Crimes Act 1958 (Vic) s 327(3)(a).

[53] Crimes Act 1900 (ACT) s 66AA(5); Crimes Act 1900 (NSW) s 316A(8); Criminal Code Act 1899 (Qld) s 229BC(5); Crimes Act 1958 (Vic) s 328. Tasmania’s provisions lack this component.

[54] Crimes Act 1900 (ACT) s 66AA(1); Crimes Act 1900 (NSW) s 316A(1); Criminal Code Act 1899 (Qld) s 229BC(2); Criminal Code Act 1924 (Tas) s 105A(2); Crimes Act 1958 (Vic) ss 327(2).

[55] Crimes Act 1900 (NSW) s 316A(6); Criminal Code Act 1924 (Tas) s 105A(6); Crimes Act 1958 (Vic) s 327(8). While Queensland and the Australian Capital Territory do not have this express legislative provision, hence depriving this conclusion of the same force, the prosecutorial guidelines would still need to be contemplated in any potential prosecution.

[56] Another notable difference is that New South Wales is alone in apparently adding a layer of insulation from the duty in relation to several named professions. The Crimes Act 1900 (NSW) s 316A(6) states that a prosecution for an offence under s 316A(1) is not to be commenced without approval of the Director of Public Prosecutions regarding information obtained by an adult in the course of practising a profession prescribed by the regulations for the purposes of s 316A(6). Section 316A(7) states the regulations may prescribe a profession as referred to in s 316A(6). The Crimes Regulation 2015 (NSW) r 4 prescribes a range of professions for the purpose of s 316A(6). However, a complicating factor in applying this exception is the DPP’s residual discretion to prosecute.

[57] Crimes Act 1900 (ACT) s 66AA(3); Criminal Code Act 1899 (Qld) s 229BC(3); Criminal Code 1924 (Tas) s 105A(5). In New South Wales, s 316A does not clearly state this, but no exception is included in the provisions, and furthermore in the second reading the Attorney-General stated that ‘The offence will apply to members of the clergy, although prosecutions against clergy and other prescribed professionals must be approved by the Attorney General, as is the case with the existing section 316’: New South Wales, Hansard, above n 34, 5.

[58] Section 327(7)(f) states that a person does not contravene the duty in s 327(2) if the victim of the alleged offence attained the age of 16 before commencement of s 4 of the Crimes Amendment (Protection of Children) Act 2014 (Vic). The Crimes Amendment (Protection of Children) Act 2014 inserted s 327, and commenced on 27 October 2014: Victoria, Gazette: Special, No 350, 7 October 2014.

[59] Crimes Act 1900 (NSW) s 316A(2)(f); Criminal Code Act 1899 (Qld) s 229BC(4)(c).

[60] Crimes Act 1900 (ACT) s 66AA(2)(a); Criminal Code Act 1924 (Tas) s 105A(3)(b); Crimes Act 1958 (Vic) s 327(5).

[61] New South Wales, Hansard, above n 34, 5. The Attorney-General stated: “A person also will have a reasonable excuse if the victim of the offence is now an adult, and the person reasonably believes that the victim does not want the offence to be reported to police. This strikes a balance between the need for police to be alerted to offences to protect other children and the importance of protecting the privacy and autonomy of adult survivors.”

[62] Victoria, Hansard, above n 37, 914. The Attorney-General stated:

The bill also respects the position of a victim who does not want details of the offending disclosed and who is sufficiently mature to make that judgement. Setting the age at which a victim is to be treated as having that maturity is a matter of judgement. The bill sets that age at 16, being the age at which the law already recognises a capacity for certain judgements in relation to sexual matters. The obligation to disclose therefore does not apply where the information comes from a person aged 16 or over who requests that the offence not be reported to police.

However, the law will recognise that a child under 16 is not able to make such a decision. The committee found that children felt shame and embarrassment from what had been done to them and lacked the knowledge and experience to understand how this sexual abuse would affect them. Further, child sexual offending occurs in a context of secrecy in which the child is often told by the perpetrator to keep the offending secret. The committee’s report identified the importance of reporting child abuse to the police, even if the victim does not wish to pursue the matter through the justice system. This is because disclosing the information to police might corroborate the account of another victim or encourage other victims to come forward.

[63] See, eg, Laurence Steinberg and Grace Icenogle, ‘Using developmental science to distinguish adolescents and adults under the law’ (2019) 1 Annual Review of Developmental Psychology 21–40.

[64] See, eg, Ben Mathews and Malcolm Smith, ‘Children and consent to medical treatment’ in Ben White, Fiona McDonald and Lindy Willmott (eds) Health law in Australia (Thomson Reuters, 2018) 159–206.

[65] It can be further noted that in exceptional circumstances, another type of legal reporting duty may supersede this outcome. So, for example, in a situation in Victoria where this exception may apply, but where the offender is known to be offending against other children, the person with the knowledge may have a duty of care in negligence to make a report.

[66] The Crimes Act 1958 (Vic) s 327(5) states: ‘A person does not contravene subsection (2) if—(a) the information forming the basis of the person’s belief that a sexual offence has been committed came from the victim of the alleged offence, whether directly or indirectly; and (b) the victim was of or over the age of 16 years at the time of providing that information to any person; and (c) the victim requested that the information not be disclosed’.

[67] In New South Wales, for example, the Crimes Act 1900 (NSW) s 316A(2)(f) expressly includes situations where the alleged victim was an adult at the time the information was obtained by the person, and the person believes on reasonable grounds that the alleged victim ‘does not wish the information to be reported to police’. Similar wording is used in Queensland, the ACT and Tasmania: see Criminal Code Act 1899 (Qld) s 229BC(4)(c); Crimes Act 1900 (ACT) s 66AA(2)(a); and Criminal Code Act 1924 (Tas) s 105A(3)(b).

[68] Crimes Act 1900 (ACT) s 66AA(2)(g); Crimes Act 1900 (NSW) ss 316A(1)(c), 316(2); Criminal Code Act 1899 (Qld) ss 229BC(2); Criminal Code Act 1924 (Tas) s 105A(2)(b); Crimes Act 1958 (Vic) s 327(2).

[69] Crimes Act 1900 (ACT) s 66AA(2)(g); Crimes Act 1900 (NSW) s 316A(3); Criminal Code Act 1899 (Qld) s 229BC(4); Criminal Code Act 1924 (Tas) s 105A(4); Crimes Act 1958 (Vic) s 327(3).

[70] Crimes Act 1958 (Vic) s 327(3).

[71] Crimes Act 1958 (Vic) s 327(3)(b).

[72] Taikato v R [1996] HCA 28; (1996) 186 CLR 454, 464 (Brennan CJ, Toohey, McHugh and Gummow JJ). Dawson J stated (470): ‘A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person ... Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer ... does not justify confining its scope for the sake of greater precision or certainty.’

[73] Ibid 464 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[74] Ibid 466 (Brennan CJ, Toohey, McHugh and Gummow JJ), stating: ‘Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.’

[75] For example, the person with the knowledge may claim that if they report their knowledge, they are in danger of some kind of reprisal.

[76] Currently, the legal ‘age of consent’ prohibits intercourse with minors under a specified age, presuming children under this age lack capacity to provide true consent. This age is 16 in six jurisdictions, and 17 in South Australia and Tasmania. Acknowledging that sexual activity between adolescents may be consensual and is ethically permissible, criminal laws in five jurisdictions – the ACT, New South Wales, South Australia, Tasmania, and Victoria – provide a ‘close in age’ defence to criminal offences where the act involves consenting persons who are both minors aged under 16, or similar in age (normally not more than two years apart): Crimes Act 1900 (ACT) s 55(3)(b); Crimes Act 1900 (NSW) s 80AG; Criminal Law Consolidation Act 1935 (SA) s 49(4); Criminal Code Act 1924 (Tas) s 124(3); Crimes Act 1958 (Vic) s 49V.

[77] On the problems caused for medical practitioners providing treatment to adolescents in consensual relationships, see Mathews and Sanci, above n 27.

[78] The Community Welfare Act 1983 (No 76) commenced on 20 April 1984. The Act contained wide mandatory reporting provisions which, uniquely for Australian jurisdictions, applied to all persons (s 14); a separate provision specifically applied to police officers (s 13). Section 14 required a person other than a member of the police force ‘who believes, on reasonable grounds, that a child has suffered or is suffering maltreatment’ to report it. Section 4(3) provided that a child will have suffered ‘maltreatment’ in situations including where: (d) he has been sexually abused or exploited, or where there is substantial risk of such abuse or exploitation occurring, and his parents, guardians or persons having the custody of him or her are unable or unwilling to protect him or her from such abuse or exploitation’.

[79] The Care and Protection of Children Act 2007 (NT) s 26 states: ‘(1) A person is guilty of an offence if the person: (a) believes, on reasonable grounds, any of the following: (i) a child has suffered or is likely to suffer harm or exploitation; (ii) a child aged less than 14 years has been or is likely to be a victim of a sexual offence; (iii) a child has been or is likely to be a victim of an offence against section 128 of the Criminal Code; and (b) does not, as soon as possible after forming that belief, report (orally or in writing) to the CEO or a police officer: (i) that belief; and (ii) any knowledge of the person forming the grounds for that belief; and (iii) any factual circumstances on which that knowledge is based’.

[80] Each State and Territory has enacted legislation about child protection, which contain provisions commonly called ‘mandatory reporting laws’. These laws require designated persons to report known and suspected cases of specified kinds of child maltreatment to child welfare agencies: Children and Young People Act 2008 (ACT) s 356; Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23, 27; Care and Protection of Children Act 2007 (NT) ss 15, 16, 26; Child Protection Act 1999 (Qld) s 13E(2); Children and Young People (Safety) Act 2017 (SA) ss 1718, 3031; Children, Young Persons and Their Families Act 1997 (Tas) ss 34, 14; Children, Youth and Families Act 2005 (Vic) ss 162(1)(c)–(d), 182, 184; Children and Community Services Act 2004 (WA) ss 124A, 124B(1)(b). The lists of designated persons are generally restricted to members of specified occupations who typically deal with children in the course of their professional work, although each State and Territory has a different list of such occupations. In all eight States and Territories, child sexual abuse must be reported; however, reflecting a narrower purpose in principle (namely, the core purpose of protecting children in the family context), even here, there are limits: Victoria and Queensland, for example, require reports of sexual abuse only if the child does not or may not have a parent or caregiver who is able and willing to protect the child from the abuse and the harm caused: Children, Youth and Families Act 2005 (Vic) ss 162(1)(d), 184; Child Protection Act 1999 (Qld) s 13E(2)(b).


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