December 2022 will mark five years since the close of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and the release of its final report. The end of 2022 is also the timeframe by which the Commonwealth, each state and territory and certain institutions must provide their final progress report on their implementation of the Royal Commission’s recommendations.

To observe the significant impact that the Royal Commission has had on schools and the forthcoming five-year anniversary of its closure, we are writing a series of articles over the course of 2022, exploring the Royal Commission’s recommendations and their implementation throughout the country. To date, School Governance has covered working with children checks, reportable conduct schemes, and limitation periods and setting aside settlements for civil litigation claims of child sexual abuse.

This is the fourth article in the series, and it will explore the impact of the Royal Commission’s recommendations in relation to criminal justice and child sexual abuse, with a focus on the ‘failure to report’ and ‘failure to protect’ offences.

The Royal Commission’s Recommendations on ‘Failure to Report’ and ‘Failure to Protect’ Offences

The Royal Commission made recommendations in 2017 to achieve more just outcomes for people involved in cases of alleged institutional child sexual abuse, through Australia’s criminal justice system. These recommendations included:

• emphasising that any person associated with an institution who suspects child sexual abuse has occurred has a moral or ethical duty to report this to police (recommendation 32)
• creating laws to make a failure to report suspicion of institutional child sexual abuse to police a criminal offence, even if formed from a religious confession (recommendations 33 and 35)
• ensuring that reports made under separate mandatory reporting and reportable conduct schemes (which tend to differ from ‘failure to report’ schemes, in requiring a smaller and more specific group of people to report a wider range of types of child abuse to child protection agencies) are referred to police, and that the law recognises this, so that duplicate reports do not have to be made to avoid liability under the ‘failure to report’ scheme (recommendation 34)
• creating laws to make a failure to protect a child from institutional child sexual abuse a criminal offence (recommendation 36).

It extensively considered the advantages and disadvantages of introducing ‘failure to report’ and ‘failure to protect’ obligations in the form of Crimes Act or Criminal Code offences, including the key interests of protecting children vulnerable to abuse, as well as not imposing unfairly onerous obligations on the delivery of services by institutions.

The Royal Commission then recommended that such obligations should exist in criminal legislation, to not only improve reporting of institutional child sexual abuse to police, but also to seek to prevent its occurrence in the first place. It also recommended certain limits on these obligations, such as that the duty to disclose abuse should only apply to abuse committed by adults, to minimise the challenges associated with issues such as adolescent peer consensual sex.

The Royal Commission also received submissions about the importance of protecting freedom of religion, including the confidential nature of religious confession for particular faiths. However, it also identified evidence heard of numerous instances of abuse being disclosed during confession, including by repeat offenders. While the Royal Commission acknowledged the importance of the right to freedom of religion in civil society, it also highlighted that this right must accommodate obligations to public safety, as recognised in article 18 of the International Covenant on Civil and Political Rights. It ultimately concluded that no exemption from the ‘failure to report’ offence (such as religious confessions privilege), should apply to any relevant information gathered in connection with any religious confession.

State and Territory Approaches to ‘Failure to Report’ and ‘Failure to Protect’ Offences

‘Failure to Report’ Offence

Most states and territories either had existing offences or have introduced this type of offence into criminal legislation in line with the Royal Commission’s recommendations. However, each jurisdiction varies as to the extent to which it adopts these recommendations.

Below is an overview of the current approach in each jurisdiction in Australia.

Failure to Protect Offence

Most states and territories have introduced this type of offence in criminal legislation, in line with the Royal Commission’s recommendations. However, even for the jurisdictions that have made this reform, some still fall short of the recommendations. For example, while the Royal Commission recommended the offence should protect children up to the age of 18, offences in jurisdictions such as Victoria and the Australian Capital Territory only cover children under 16 years of age.

Below is an overview of the current approach in each jurisdiction in Australia.

Annual Progress Reports

More information regarding the Victorian, New South Wales, Australian Capital Territory, Queensland, South Australian, Tasmanian, Northern Territory and Western Australian approach to the Royal Commission’s recommendations can be found in their Annual Progress Reports.

What Should Schools Do?

Schools should inform their staff, volunteers and contractors about their obligations under the ‘failure to protect’ and ‘failure to report’ offences. Schools will also need to update their Child Protection policies and procedures to reflect current, and upcoming changes to, criminal laws.

Previous Articles in the Royal Commission Review Series

• Working with Children Checks: Royal Commission Review
• Reportable Conduct Scheme: Royal Commission Review
• Limitation Periods and Setting Aside Settlements for Child Sexual Abuse: Royal Commission Review.

Authors

Jaclyn Ling

Jaclyn is a Legal Content Associate at CompliSpace. A recent graduate from Macquarie University in Sydney, she holds a double Bachelor's degree in Commerce and Law (Honours).

Karen Zeev

Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).