To commence the week beginning 14 August 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse published its final recommendations on criminal justice in Australia, following years of research, round-tables, hearings and consultations examining issues in the criminal justice system in relation to institutional child sexual abuse.

Clocking in at just over 2000 pages, the Commission’s full Criminal Justice Report (the Report) is certainly not a ‘bit of light reading’. However, the sweeping legislative and policy changes it proposes – including several new criminal and expanded nationalised criminal offences – will invariably change the way schools manage child protection risks.

Report Background and Summary

On 5 September 2016, the Commission published the Consultation Paper: Criminal justice (the Paper). A wide range of submissions were received in response, and in November-December 2016 all six Commissioners sat for public hearings in relation to issues raised in the Paper. The Commission also released model legislation to amend evidence laws on 25 November 2016 to allow for greater admissibility of tendency and coincidence evidence in child abuse trials.

Significant input to the Paper, model legislation and feedback generally in relation to criminal justice issues, including from private sessions, public hearings and information obtained under summons, has informed the Commission’s concluded views regarding appropriate criminal justice reforms.

The first recommendation in the Report provides that the criminal justice system should be reformed to ensure that the following objectives are met:

• the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused;
• criminal justice responses are available for victims and survivors; and
• victims and survivors are supported in seeking criminal justice responses.

The other 84 recommendations together establish the reforms necessary to achieve the Commission’s objectives.

Outline of the Recommendations

The Commission’s recommendations address the following reform areas in relation to institutional child sexual abuse:

• improving Police responses, including addressing particular issues regarding reports of historical child sexual abuse and reports made by people with disabilities;
• improving prosecution responses and facilitating greater admissibility of tendency and coincidence evidence and joint trials;
• improving special measures and courtroom experiences, reducing delays, and improving case management;
• judicial directions and improving information for judges, legal practitioners and juries, including in relation to implementing regular training and education for the judiciary and the legal profession;
• reforming elements of sentencing and the appeal processes, and improving criminal offences; and
• improving interaction between criminal justice and regulatory responses, to ensure state and territory government responses are able to respond effectively to institutional child sexual abuse.

Improvements to Particular Child Sexual Abuse Offences: Vic sets a good example

Eleven of the Commission’s recommendations target improvements to particular child sexual abuse offences, including:

• making the offences of persistent child sexual abuse/maintaining an unlawful sexual relationship more effective to reflect how complainants experience and remember repeated child sexual abuse; and
• expanding grooming offences to include any communication/conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence and to include the grooming of third parties such as parents and carers.

Currently all Australian jurisdictions have offences related to grooming in some form, generally in one of the below structures:

• online and electronic grooming offences. These focus on conduct involving online or other electronic communication.
• specific conduct grooming offence (NSW only). This focuses on specific conduct such as sharing indecent images or supplying the victim with drugs or alcohol.
• broad grooming offences. These offences criminalise any conduct aiming to groom a child for later sexual activity.

South Australia and Tasmania have broad grooming offences which cover communication rather than referring to any particular conduct. In Victoria and Queensland, the offence also covers any ‘grooming’ words or conduct in relation to the conduct. However, only the Victorian offence covers both the grooming of the child and the grooming of a person with care, supervision or authority of the child, and it is this offence that the Commission recommends that other jurisdictions draw upon.

Introduction of Child Protection Third Party Offences

Five of the Commission’s recommendations relate to the introduction of consistent third part offences across Australia, of failure to report and failure to protect.

Failure to report: Clergy not exempt

Under the Crimes Act 1900 (NSW) section 316(1) a person who knows/believes that a serious indictable abuse has been committed, and has information which might be of material assistance in securing apprehension, prosecution or conviction of the offender, must bring that information to the attention of the Police or another appropriate authority. Failure to do so without reasonable excuse is a criminal offence.

Under section 327 of the Crimes Act 1958 (Vic) introduced in 2014, an adult who forms a reasonable belief that a sexual offence has been committed in Victoria against a child must disclose the information to the Police as soon as it is practicable to do so.

The Commission identified that a lower standard of knowledge or belief is needed to ensure that allegations are better reported to the police, noting that the NSW and Victorian offences require proof of actual knowledge or belief that the abuse occurred. As a result, the Commission’s offence is stated to apply if a relevant person at an institution:

• knows or suspects that a child is being or has been sexually abused or;
• should have suspected that a child is being or has been sexually abused,

by a person associated with the institution.

Under recommendation 33, this offence applies to any adult person who is an owner, manager, staff member or volunteer at a relevant institution. This is a narrower offence targeted at institutions, rather than all persons/adults as in NSW and Victoria, but explicitly includes persons in religious ministry and other officers/personnel in religious institutions.

The Commission also concluded that there should be no exemption or privilege from the failure to report offence for clergy who receive child abuse information during religious confession. This was in response to evidence of perpetrators making a religious confession to sexually abusing children, who later reoffended and sought forgiveness.

In recommending the abolition of any religious confession exemption, the Commission noted that the principle of freedom of religion is not absolute, and may be subject to such limitations necessary to protect public safety, order, health or morality, as reflected in article 18 of the International Covenant on Civil and Political Rights (to which Australia is a party).  The recommendations in relation to religious practices have received the most media attention, with various church members objecting to the proposed reforms.

Failure to Protect

In 2015, Victoria introduced a new criminal offence under section 49C of the Crimes Act 1958 (Vic): persons in authority in an organisation are required to protect children from a substantial risk of a sexual offence being committed by a person associated with the organisation if they know of the risk, and must not negligently fail to reduce/remove the risk if they have the power/responsibility to do so. An example of this provision being employed positively in the school context can be found in our previous School Governance article.

In its case studies, the Commission uncovered many circumstances in which steps were not taken to protect children, including where persons who were subject to child abuse allegations were permitted to continuing working with children. A key example was where alleged perpetrators were moved between schools or other sites operated by the same institution.

The Commission considered that the Victorian offence provides a useful precedent which other jurisdictions should follow. In recommending a uniform failure to report offence, the Commission modified it to only cover adults, not children, in leadership positions, but extended the ambit to protecting children who are 16-17 years of age.

Looking towards the final Commission report

It is worth noting that this 2000+ Report is only an interim publication; the Commission’s final report is required to be submitted to the Governor General by 15 December 2017. But it is safe to assume that the Commission’s recommendations concerning improvements to criminal offences, including grooming and third-party offences, will form part of its final conclusions.  Once the final report is released, the spotlight will shift to federal, state and territory governments to see if they will support the recommendations and respond with legislative reform.

Schools seeking to be proactive in their child protection risk management should be taking steps to ensure their policies and procedures cover existing legal, regulatory and best practice requirements. Although it is unclear how governments will respond to the final report, it is likely that some legal change will occur in response to the Commission's recommendations.