Increased Mandatory Reporting Requirements in Victoria

May 12, 2014

The challenges of child sexual abuse and violence have been thrust into the public spotlight over recent years, with a dramatic increase in community awareness of these previously “taboo” topics. Significant media and community attention has called for legal reform particularly in the areas of family and criminal law, and in November 2013 the Victorian Parliament’s Family and Community Development Committee responded by releasing a report with a number of recommendations.

The Victorian Government has introduced a draft of proposed measures protecting children from sexual abuse, particularly aimed at persons of authority and responsibility in institutions. Amongst other changes, the Crimes Amendment (Protection of Children) Bill 2014 (if enacted) will add two new offences to the Crimes Act 1958.

Failure to Protect

Under the proposed amendments, relevant persons in an organisation have a duty to remove or reduce the risk of a sexual offence against a child by an adult associated with the organisation if they are aware that there is a substantial risk that such an offence may occur. The relevant persons include those who hold positions of authority in an organisation that exercises care, supervision or authority over children, and who have the power or responsibility to reduce or remove the risk. Organisations affected could include schools, churches and other religious organisations, and failure to reduce or remove the risk would be a criminal offence.

It should be noted, that it is not necessary to prove that a sexual offence has been committed in order for a relevant person to have negligently failed to reduce or remove that risk.

Failure to Disclose

The amendments would also require any adult aware of information that leads them to reasonably believe that a sexual offence has been committed against a child under the age of 16 years by an adult must report the matter to police as soon as practicable.

The draft legislation provides some exceptions, such as where the person reasonably fears for the safety of any person (other than the offender). However, failure to disclose the information because of concern for the interests of an organisation or the person believed to have committed or been involved in committing the sexual offence is not a reasonable excuse.

Where an adult receives information from the victim about a sexual offence and the victim is 16 years or older at the time of providing the information, if the victim requests that the information not be disclosed, the adult is generally not required to report the matter (although some exceptions would apply, such as where the victim has an intellectual disability and does not have the capacity to make an informed decision about whether or not the information should be disclosed).

Protection of Those Who Report

If a person makes a disclosure to police in good faith in compliance with the proposed sections above, they would be protected by statute from being found guilty of unprofessional conduct or a breach of professional ethics. They would also be protected from any liability arising from the disclosure.

When the legislation is enacted, it will place serious obligations on all individuals, but especially on those involved with churches, schools and other institutions. Every organisation should ensure that it has a child protection policy that complies with legislation and guides it in fulfilling all legal obligations. Failure to uphold these new requirements could result in serious criminal prosecution.

For more guidance on how your organisation can comply with its reporting obligations, contact Hutchinson Legal on 03 9870 9870.

 

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