Queensland Child Protection Update: ‘Failure to Protect’ and ‘Failure to Report’ Offences Commence on 5 July 2021

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The Queensland Parliament has implemented recommendations made in the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse by introducing two new criminal offences that impose a positive duty on third parties to act in relation to child sexual abuse.

The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (Qld) amends the Criminal Code Act 1899 (Qld) (Criminal Code) and includes the new offences of:

• “Failure to protect child from child sexual offence” under section 229BB (Failure to Protect)
• “Failure to report belief of child sexual offence committed in relation to a child” under section 229BC (Failure to Report).

These offences commence operation on 5 July 2021, and will apply to certain people in Queensland, including people who work in government and non-government schools.

Failure to Protect

Under section 229BB of the Criminal Code, an adult (aged 18 or over) who is associated with an institution, including a school, (whether as an employee, contractor, volunteer or otherwise) will commit a criminal offence if they:

• know that there is a significant risk that another adult associated with the institution:
• will commit a child sexual offence
• in relation to a child (under 16 years of age, or 16 or 17 years of age but with impairment of the mind) under the care, supervision or control of the institution; and
• have the power or responsibility to reduce or remove the risk; and
• willfully or negligently fail to reduce or remove the risk.

In the school context, all staff members (whether teaching or non-teaching), members of the school’s governing body, volunteers and contractors are considered to be “associated with” the school.

Therefore, this offence means that action must be taken:

• by any staff, volunteer or contractor who has the power or responsibility to do so
• to protect students aged under 16, or students under 18 years of age with impairment of the mind
• from a known significant risk of sexual abuse that is posed by an adult staff member, volunteer or contractor at the school.

Whether a staff member, volunteer or contractor at the school has “power or responsibility to reduce or remove the risk” to the student will depend on their role at the school and on the source of the risk.

In a normal school context, the principal and members of the school’s leadership or management team would always have the necessary degree of supervision, power and responsibility to remove or reduce a risk posed by another adult working at the school. However, on a day-to-day basis, and on tours, excursions, or camps, others at a school may have the requisite power and responsibility.

Appropriate action that can be taken to protect students from a significant risk of a child sexual offence or a reasonably foreseeable risk of harm may include, for example:

• a current staff member, volunteer or contractor, who has direct contact with and is known to pose a risk of physical abuse to students, being immediately removed from contact with students and reported to external authorities
• a parent who is known to pose a risk of sexual abuse to students not being allowed to attend excursions as a parent helper.

The maximum penalty for this offence is five years imprisonment.

Failure to Report

Under section 229BC of the Criminal Code, any adult who gains information that:

• causes the adult to believe on reasonable grounds, or that ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child by another adult; and
• at the relevant time, the child is or was:
• under 16 years; or
• a person with an impairment of the mind

must disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought to reasonably to have been, formed. Failure to report this information to the Police without reasonable excuse is a criminal offence and carries a maximum prison term of three years imprisonment.

This obligation to report child sexual offences to the Police applies to everyone in Queensland aged 18 years or over, including all staff, volunteers, contractors and students aged 18 and over at a school.

The offence will not apply if the adult has a reasonable excuse for not reporting the information. Under the Criminal Code, a reasonable excuse includes:

• believing, on reasonable grounds, that the information has already been disclosed to a police officer
• making a mandatory report to Police or Child Safety Services under mandatory reporting laws or believing on reasonable grounds that another person has done so
• gaining the information after the alleged victim becomes an adult, and reasonably believing that the alleged victim does not want the information to be disclosed to a police officer
• having a reasonable belief that disclosing the information to a police officer would endanger your safety or the safety of another person, other than the alleged offender, regardless of whether the belief arises because of the fact of the disclosure or the information disclosed, and the failure to disclose the information to a police officer is a reasonable response in the circumstances.

Unacceptable reasons for not reporting include if you are concerned about the interests (including the reputation, legal liability or financial status) of:

• the person who may have committed a child sexual offence
• any organisation (such as a school).

Information gained by an adult during, or in connection with, a religious confession is not excluded from information that must be reported to Police.

The list of child sexual offences that are captured by the Failure to Report offence is extensive. It includes sexual offences such as rape, sexual abuse, sexual touching, the production of child abuse material, voyeurism and grooming offences or attempts to commit those offences.

What Should Schools Do?

Principals and members of the school’s leadership or management team should not only note that these new offences impose – from 5 July 2021 – a positive duty on them to act in response to child sexual abuse, but should also ensure that staff, volunteers and contractors are informed of their obligation to report child sexual offences to the Police, and their positive duty to remove or reduce risks of child sexual abuse (in certain circumstances).