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The Statutes Amendment (Child Sexual Abuse) Act 2021 came into operation on 1 June 2022. The Act introduces important reforms arising from recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. It includes 2 new offences which carry a penalty of imprisonment.
It’s important for all Department for Education employees, contractors and volunteers to read the information below and understand your legal obligations.
The Act creates new criminal offences of:
- failure to report child sexual abuse, and
- failure to protect a child from sexual abuse.
A prescribed person is guilty of an offence if they fail to report to police that they know or suspect that another person (the abuser) is an employee of the department and is, has, or is likely to sexually abuse a child.
A prescribed person means an adult who is an employee of an institution which includes:
- a person who is self-employed who carries out work for the institution, or
- a person who carries out work under a contract of services for the institution, or
- a person who undertakes practical training with the institution, or
- a person who carries out work as a volunteer for an institution.
‘Employee’ includes, but is not limited to, a:
- School Services Officer (SSO)
- Australian Senior Education Official (ASEO)
- Early Childhood Worker (ECW)
- Student Teacher
- contractor who does work for the department
- Governing Council employee
- out of school hours care (OSHC) employee
- Family day care (FDC) operator
- a volunteer such as a Governing Council member or parent volunteer.
Reporting actions of a suspected offender
The requirement to report to police created by this offence is a different obligation to reporting a child at risk of harm of sexual abuse to Department for Child Protection using the Child Abuse Report Line (CARL), which still needs to occur. The requirement is focused on reporting the actions of a suspected offender. It includes any suspicion you may have about behaviour outside the workplace and outside of work hours. You do not need to know the identity of the child or young person.
It is a defence to the charge of failing to report if you believe on reasonable grounds that the matter has already been reported to police or has been reported as a mandatory notification under the Children and Young People (Safety) Act. However, the department requires that you always report to police when you know or suspect that another employee is engaging or is likely to engage in the sexual abuse of a child.
Failure to protect a child from sexual abuse
A prescribed person is guilty of an offence if:
- they know there is a substantial risk that another person, who is also an employee of the department, will engage in the sexual abuse of a child, and
- the prescribed person has the power or responsibility to reduce or remove that risk but negligently fails to do so.
The department has an expectation that a prescribed person who knows there is a substantial risk that another employee will engage in the sexual abuse of a child, will take all action they can (commensurate with their role and responsibility) to reduce or remove the risk.
The new offences have been created because the Royal Commission found that historically, institutions working with children, under-reported suspicions of child sexual abuse to police when a staff member was involved.
It is often difficult for a child victim to disclose abuse in a timely manner. Children have fewer opportunities and less ability to report abuse to police or take effective steps to protect themselves. These offences are designed to require adults in institutions to take responsibility for reporting and preventing child sexual abuse in institutional contexts.