The South Australian Parliament has implemented recommendations made in the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) (Amendment Act) will amend the Criminal Law Consolidation Act 1935 (SA) (Criminal Law Act) when it commences operation, on proclamation. A proclamation was made on 17 February 2022 that the Amendment Act will commence on 1 June 2022.

This significant reform to the Criminal Law Act includes the new offences of:

• “Failure to report suspected child sexual abuse” under section 64A (Failure to Report)
• “Failure to protect child from sexual abuse” under section 65 (Failure to Protect).

The amendment to the Criminal Law Act also introduces a new ‘similar age’ defence to some of the ‘position of authority’ sexual offences, explained further below.

Failure to Report

From 1 June 2022, under section 64A of the Criminal Law Act a “prescribed person” (which includes, in the school context, all adult staff, volunteers, contractors, ministers of religion and teaching students on placement) commits an offence if:

• the person knows, suspects or should have suspected that another person (the abuser)
  • has previously engaged in the sexual abuse of a child while an employee of the school; and
    • the child is still under the age of 18 years; or
    • the abuser is still an employee of the school or another institution; or
    • the sexual abuse occurred during the preceding 10 year period; or
  • is an employee of the school and is engaging, or likely to engage, in the sexual abuse of a child
• and the person refuses or fails to report that to the Police.

As a result of this new offence, from 1 June 2022, all adult staff, volunteers, contractors, ministers of religion and teaching students on placement at a school must make a mandatory report to Police when their knowledge or suspicions reach the required threshold. Failure to make a report without reasonable excuse is an offence and carries a prison term.

Failure to Protect

From 1 June 2022, under section 65 of the Criminal Law Act a “prescribed person” also commits an offence if:

• they know that there is a substantial risk that another employee of the school (the “abuser”) will engage in the sexual abuse of a child
  • who is under 17 years of age; or
  • in relation to whom the abuser is in a position of authority; and
• they have the power or responsibility to reduce or remove that risk; and
• they negligently fail to do so.

Whether a staff member, volunteer or contractor at a school has “power or responsibility” to take steps 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 usual school context, a member of the school’s management team would always have the necessary degree of power and responsibility to take any actions required to remove or reduce a risk of harm posed by an employee of 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, such as:

• teachers
• direct contact volunteers or direct contact contractors where they are in a position of supervision over students or over other school employees.

As a result of this new offence, where any staff member, volunteer or contractor at a school knows that another employee poses a substantial risk of sexual abuse to a student, they must immediately take any and all reasonable steps to remove or reduce the risk.

Appropriate action that can be taken to protect students from a substantial risk of sexual abuse by another employee could include, for example:

• immediately removing the other employee from contact with the student or students
• immediately reporting the matter to the Child Abuse Report Line (CARL) and the Police
• after notifying CARL/the Police, reporting the matter to the Principal (or to the school’s governing body if it is the Principal who poses the risk) to enable the school to take additional actions.

Similar Age Defence to Some ‘Position of Authority’ Sexual Offences

The age of consent for sexual activity in South Australia is 17. Criminal offences relating to sexual activity with a child therefore generally require that the child be aged 16 or under. However, several offences in the Criminal Law Act identify the unique relationship between a student and people in a position of authority and make it illegal for a person in a position of authority to engage in sexual behaviour with a child who is aged 17.

The Criminal Law Act sets out who is considered to be in a “position of authority”. Relevant to a school, the list includes:

• teachers, regardless of whether the child is taught by the teacher in a class at the school
• persons who provide religious, sporting, musical or other instruction to the child (including volunteers and contractors in these roles)
• religious officials or religious leaders (including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child
• health professionals or social workers providing services to the child
• employers of a child (or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment), regardless of whether the child is paid or a volunteer.

The Amendment Act introduces a ‘similar age’ defence to the following two offences:

• under section 49(5) of the Criminal Law Act, it is an offence for a person in a position of authority to have sexual intercourse with a child who is aged 17
• under section 63B of the Criminal Law Act, it is an offence for a person in a position of authority to engage in certain grooming behaviours with a child who is aged 17.

In the school context, the inclusion of the ‘similar age’ defence means that, if an accused was a volunteer or contractor who provided religious, sporting, musical or other instruction to the child, they will be found ‘not guilty’ if they can prove that:

• the child was of or above the age of 17 years on the date on which the offence is alleged to have been committed; and
• they themselves were:
  • under the age of 18 years on the date on which the offence is alleged to have been committed; or
  • they believed on reasonable grounds that the child was of or above the age of 18 years.

The similar age defence recognises that, where young people work or volunteer with students of a similar age (such as a current student volunteering to tutor their peers or a former student contracted as a sports coach), there is a potential for consenting sexual relationships to occur, and that – provided that the relevant student is (or is thought to be) aged 17 or above - young volunteers and contractors in this situation should not be criminalised. Note however that this defence only applies in situations involving older students. The defence cannot be used if the relevant child is 16 or under.

What Do Schools Need to Do?

Schools should inform their staff, volunteers and contractors about their new obligations under the ‘Failure to Protect’ and ‘Failure to Report’ offences ahead of the commencement of the legislation on 1 June 2022. Schools will also need to update their Child Protection policies and procedures to reflect the above changes to the criminal law.