The introduction of a new Bill in NSW Parliament proposing to significantly amend the Crimes Act 1900 NSW signals that the NSW Government is finally catching up to Victoria and other states in getting serious on child protection legal reform. Amongst other proposed changes are the creation of an offence of failing to reduce or remove the risk of child abuse and new grooming offences. If passed, these reforms will require organisations engaging in child related work to, at a minimum, update their child protection policies and procedures to comply with the new laws and, in further steps of good governance, provide serious motivation to adopt the NSW Principles for Child-Safe Organisations and the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission),10 Child Safe Standards.
What is the New Law Proposing?
The Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (the Bill) is proposing numerous amendments to the Crimes Act 1900 (NSW) (the Act). The changes include the following:
- New Section 43B offence of 'Failure to reduce or remove the risk of child becoming victim of child abuse': if an adult (of or above 18 years old) works as an employee, contractor, volunteer or otherwise for an organisation (eg a school) and that person knows of a serious risk that another adult who engages in child-related work at the organisation will commit a child abuse offence against a child (under the age of 18) who is, or may come, under the care, supervision or authority of the organisation, and that person has the power or responsibility to reduce or remove that risk and negligently fails to do so - they will face a two year jail term.
- New Section 66EC offence of 'Grooming a person for unlawful sexual activity with a child under the person''s authority': if an adult provides a person (other than a child) with any financial or other material benefit and who does so with the intention of making it easier to procure a child who is under the authority of the person for unlawful sexual activity with the adult person or other person, they will be guilty of an offence punishable by 5-6 years imprisonment (depending on the age of the child).
- New Section 73A offence of 'Sexual touching - young person between 16 and 18 under special care': if a person intentionally sexually touches/incites a young person to touch them or another person, and the young person is under that person's ''special care'', they will commit an offence facing a two or four year jail term (depending on the age of the young person). ''Special care'' includes an offender who is a member of the teaching staff of the school at which the victim is a student or an offender who has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim.
- New Section 316A offence of 'Concealing child abuse': an adult who knows, believes, or reasonably ought to know that a child abuse offence has been committed against another person, 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, and fails without reasonable excuse to bring that information to the attention of the NSW Police as soon as it is practiable to do so, will be guilty of an offence punishable by two years imprisonment.
Failure to Reduce or Remove the Risk of Child Abuse
This new offence is similar to the Victorian criminal offence of failure to protect a child from sexual abuse (refer to the Department of Justice summary for more information). That offence took effect in Victoria in 2015. While some of the terminology is different eg NSW uses the test of ''serious risk'' while Victoria uses ''substantial risk'' and the imprisonment penalties are different (Victoria is five years, NSW is two years), the underlying concepts are the same. Crucially, the NSW offence is broader than the Victorian version as it relates to ''child abuse offences'' which is a broader term than the Victorian ''sexual abuse'' offence requirement.
The ''knowledge'' element is undefined in the Bill, however in Victoria, this term is understood to mean "a person is generally taken to know that there is a risk if he or she is aware that it exists or will exist in the ordinary course of events. This is more than merely holding a tentative belief or suspicion." If the changes become law, the other aspects of the NSW offence should be explained for affected organisations in guidance. For example what does ''serious risk'' mean? There is currently no list of affected organisations but given the fact that ''child-related work'' has the same definition as in the Child Protection (Working with Children) Act 2012 (NSW), all NSW schools will be covered by this new offence. In other words, if the law takes effect, schools will need to understand how to avoid a 'failure to reduce or remove the risk' of a student becoming the victim of child abuse committed by an adult working at the school. Educating staff and updating policies and procedures will be crucial steps to take to ensure adult members of the school community (employee, contractors, volunteers etc) are aware of their new duty.
In practice, if a person at a school engages in conduct that meets the new test of ''serious risk'' they will also likely trigger mandatory reporting laws, reportable conduct laws and should lose any working with children clearance they hold.
Sexual Touching and Grooming
The Bill proposes a new definition of ''sexual touching'' and a range of new offences relating to the sexual touching of a child of different ages. Under section 61HB ''sexual touching'' means a person touching another person: with any part of the body or with anything else or through anything, inlcuding anything being worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual.
The new grooming offence under section 66EC will affect schools as their staff have students under their ''care, supervision or authority''. If a school staff member is given a financial or other benefit by another person to help groom a student in their care, this offence will apply.
Concealing Child Abuse Offence
Despite the breadth of this offence, the Bill also proposes several exceptions explaining what a "reasonable excuse'' would be to not report the information to Police. Circumstances include where the person:
- believes, on reasonable grounds the Police already know the information
- has made a mandatory report under mandatory reporting laws or believes that another person has done so
- has reported the information to the Ombudsman under reportable conduct laws, or believes on reasonable grounds that another person has done so.
Ultimately, in a school context, if an instance of child abuse occurs, there are several reporting laws that will be triggered under pre-existing laws. In the event that the conduct is not reportable under those laws, this Crimes Act offence will apply. This raises the question of sharing information internally about when a mandatory report/reportable conduct is made so as to help others avoid making unnecessary other reports, although privacy issues should be considered.
How Schools can be Proactive in Anticipation of New Laws
While the Bill is debated in Parliament, the law is not in effect and schools are not required to take steps to prevent offences under the new provisions occuring. But with the publication of the NSW Principles for Child-Safe Organisations by the Office of the Children’s Guardian (OCG) and the Royal Commission's 10 Child Safe Standards (refer to this previous School Governance article for more information about both) schools should be motivated to act now and comply with both sets of best practice child safe initiatives. Compliance with the Principles and the Standards will help to create a culture of child safety in a school which will work to minimise the risk of child abuse occurring in its school environment, thereby reducing the risk that the criminal offences introduced under the Bill will occur. Taken together, these are clear reasons why schools should be taking a proactive approach to child safety, by implementing a child protection compliance program that covers a broad scope of regulatory obligations and which is flexible enough to be tailored to reflect any future legal changes.