Pioneering Victorian laws that introduce the offence of 'failing to report sexual offences against children' will partially come into force on 27 October 2014. The laws, which amend the Crimes Act 1958 (Vic) and which we foreshadowed in a previous article, are a result of the Betrayal of Trust Report, a report of the Inquiry into the Handling of Child Abuse by Religious and Other Organisations. These changes complement reforms to create 'child safe' environments in places such as schools, which are in the process of being legislated.

Failing to report sexual offences

The first round of provisions to come into effect on 27 October 2014 are offences which make it a crime to fail to disclose sexual offences committed in Victoria against children under the age of 16 years. In essence, if a person (the Reporter) is over 18 and has information that leads him or her to form a reasonable belief that a sexual offence against a person under 16 years has been committed, the Reporter must disclose that information to a member of the Victorian Police. Failure to do so, without a reasonable excuse, is punishable by up to 3 years imprisonment.

A reasonable excuse includes if the:

• Reporter fears for the safety of any person involved in the sexual offence; and
• Reporter reasonably believes that the information has already been disclosed and they have no further information.

Other exceptions to disclosure apply, including if the person providing the information to the Reporter was a victim, was 16 years old or older at the time of providing the information to the Reporter and requested that the information not be disclosed.

However, it is not an excuse if a person fails to disclose information because they are concerned about the 'perceived interests' of the alleged perpetrator or the school involved. That is, concerns about negative publicity are not a defence.

Persons who make such disclosures have the benefit of having their identity protected under law, including:

• a provision entitling the Reporter to protections against such a report being considered unprofessional conduct or a breach of ethics;
• a limited protection against being identified in legal proceedings involving the offence; and
• provisions entitling the Reporter to confidentiality as to their identity.

The Explanatory Memorandum makes it clear that a person will not commit an offence if they have only heard rumours or speculation, or has a small piece of information, and does not make a disclosure to the Police.  Instead, this offence is aimed at people who have information of a sufficient quality and who fail to disclose that information.

Failing of a person in authority to protect a child from a sexual offence

The Victorian reforms also contain other provisions that will come into effect on 1 July 2015, if they are not otherwise brought into force earlier. These laws will make it an offence if:

• a person is in a position of authority (such as a teacher or principal); and
• that person has the power or responsibility to reduce or remove a substantial risk of a child sexual offence by someone who is associated with the school; and
• that person negligently fails to remove such a risk.

It is not necessary to prove that a sexual offence has been committed for a person to be prosecuted under this offence. This provision applies to a wide range of associates of the school, including a volunteer or contractor. In practical terms, this means that persons in a position of authority must exercise 'a standard of care that a reasonable person would exercise in the circumstances'.

It also does not matter if some of the elements of the offence were committed outside Victoria, so long as some other element occurred in that State.

This offence carries a penalty of five years imprisonment.

What does this mean for schools in Victoria?

These new laws will create a raft of obligations that will affect schools in Victoria.

First, all staff, parents and school community members will be subject to the offence of failing to report sexual abuse of a person under 16. This is a personal responsibility.

Second, schools will be required to implement policies and procedures to reduce or remove the risk of a child sexual offence. Principals and other school administrators face a criminal penalty for failing to mitigate this risk. It is therefore prudent for schools to ensure that all staff are aware of these obligations and provide training on the scope of these laws. This could mean, for example:

• updates to mandatory reporting policies;
• increased screening beyond Working With Children Checks; and
• an obligation to ensure all staff are trained on detecting and preventing child sexual offences.

What does this mean for other schools across Australia?

Given that the final report of the Royal Commission into Institutional Child Sexual Abuse is due by the end of 2017, schools should be on notice that change is on the way. Victoria may be leading other States and Territories in instigating reforms but legislative changes by other jurisdictions are inevitable in response to future recommendations by the Royal Commission. The Interim Report reveals the tenor of most of these changes.