In August 2017 the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) released its Criminal Justice Report (Report). The Report noted that many of the Royal Commission’s case studies show that institutions did not take steps to protect children entrusted to them. It goes on to say:
These include examples where persons were allowed to continue to work with a particular child after concerns were raised, and they continued to abuse the particular child. They also include examples where persons who had allegations made against them were allowed to continue to work with many other children and they went on to abuse other children. In some cases, perpetrators were moved between schools or other sites operated by the same institution.
Recommendation 36 of the Report proposes that “state and territory governments should introduce legislation to create a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution”.
Recommendation 36 should not be confused with the ‘duty to protect’ laws that impose civil liability on institutions for failing to prevent child sexual abuse and which was discussed in a recent School Governance article.
‘Failure to Protect’ Offence
Recommendation 36 seeks to criminalise a ‘failure to protect’ in order to place responsibility on the institutions themselves, into whose care children are entrusted such as schools, boarding schools and parishes, as part of a raft of actions and strategies that seeks to make these institutions more child safe. The Report describes a duty to protect as “primarily designed to prevent child abuse”. It should be noted that this goal is further supported by the Royal Commission’s recommendation of a ‘failure to report’ offence.
The language of the recommendation in the Report specifically references, as a precedent for a ‘failure to protect’ offence, the Victorian offence in section 49O of the Crimes Act 1958 (Vic), which by the time of the release of the Report in 2017, had already commenced two years earlier in 2015 .
While all states and territories have, at a minimum, expressed their acceptance of this recommendation in principle or have taken it under further consideration, at this stage, only New South Wales has implemented it into their legislation.
This article will examine the current status of the ‘failure to protect’ offence and its progress in being implemented in state and territory legislation across Australia.
Victoria’s ‘failure to protect’ offence commenced on 1 July 2015, as part of a legislative response to the Betrayal of Trust report released by the Victorian Government. The offence can be found in section 49O of the Crimes Act 1958 (Vic). In plain English, it outlines that:
- it is an offence if you hold a position within or in relation to an organisation that cares for, supervises or has authority over children (such as a school); and
- you know that there is substantial risk of a child (under 16) under the care, supervision or authority of that organisation being a victim of a sexual offence committed by an adult associated with the organisation; and
- you, as a result of your position, have the power to reduce or remove that risk; and
- you negligently fail to reduce or remove that risk.
It is irrelevant whether or not an offence was actually committed as it is only necessary to prove that the risk itself existed. Notably, this offence only applies if the child at risk is under the age of 16, but the Royal Commission’s recommendation specified that this should be extended to children up to the age of 18.
New South Wales
In New South Wales the ‘failure to protect’ offence was introduced, in response to the Royal Commission’s recommendation, by the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW). The offence, which can be found in s43B of the Crimes Act 1900 (NSW), largely expresses the same elements as the Victorian provision. The main two differences lie in the fact that the New South Wales provision accounts for children up to the age of 18, as recommended in the Report, but that the maximum penalty is two years’ imprisonment, compared to five years in the Victorian provision. Therefore, the scope of the offence is broadened but there is a lesser penalty.
Australian Capital Territory
In its response to the Royal Commission, the ACT government stated that it “supports the intent of the recommendation and has commenced consultation in relation to creating a failure to protect offence”. The ACT Government has since introduced the Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT). It has been introduced to implement a number of recommendations from the Royal Commission, including Recommendation 36, but has not yet been assented to. The provision proposed in the Bill mirrors the Victorian provision and only applies to children under the age of 16, with a maximum penalty of five years’ imprisonment.
The Commonwealth Government introduced the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (Cth) on 24 July 2019. The general outline in the Bill’s explanatory memorandum states that the Bill recognises “that the Commonwealth also has the scope and responsibility to introduce a similar offence” because Commonwealth representatives engage with children in various capacities. The Bill will therefore introduce a new offence in the Criminal Code Act 1995 (Cth) for a Commonwealth officer who negligently fails to reduce or remove the risk of a child under their care, supervision or authority being sexually abused, if it is part of their actual or effective responsibilities as a Commonwealth officer to reduce or remove that risk. “Commonwealth officer” has a lengthy definition and includes a Minister, a public service employee and an officer or employee of a contractor or subcontractor of the Commonwealth or a Commonwealth authority. The provision applies to children under 18 and the penalty is imprisonment for five years. The Bill also amends the Crimes Act 1914 (Cth) to ensure that the special rules for children involved in proceedings will be extended to any child witness involved in legal proceedings for the failure to protect offence.
Other States and Territories
Tasmania, the Northern Territory, Queensland, South Australia and Western Australia have all made varying commitments to Recommendation 36 in their responses to the Royal Commission but are yet to begin the process of implementing the offence into their legislative frameworks. However, it may be worth noting that Tasmania and Western Australia both have pre-existing ‘failure to protect child from harm’ offences. However, these offences simply outline that individuals who owe a duty of care to children should not engage in conduct that will result in harm to the child. They do not apply to institutions and therefore do not fully serve the intent of the Royal Commission to change child-safe culture in child-related organisations across Australia.
What Does This Mean for Schools?
The Letters Patent of the Royal Commission, the Report and the recommendations made in the Report aim to address the issue of “what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims”. As such, the introduction of a ‘failure to protect’ offence in various jurisdictions, and its growing consideration in others, is symptomatic of an increasing sense that the responsibility to prevent child sexual abuse applies to institutions that care for or interact with children. Consequently, schools, even in those in jurisdictions that have not yet enacted a ‘failure to protect’ offence, should ensure that they are meeting these standards with a strong child protection program with processes and protections in place that minimise the risk of child sexual abuse.
Deborah de Fina
Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.
Soo Choi is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Arts and Bachelor of Laws at the University of Sydney.