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Failing to Report Sexual Offences against Children is Now an Offence

As of 5 July 2021, it has become an offence in Queensland if you fail to report sexual offending against children.

In this article, we’ll set out how the new law works, who it applies to, and what exceptions there are to the reporting requirements.

The New Reporting Obligations in a Nutshell

If you are over 18, then in simple terms, you must report to the police:

  1. any sexual offence;
  2. against a child;
  3. that you reasonably believe is occurring, has occurred in the past, or is at risk of occurring;
  4. unless you have a reasonable excuse not to do so.

What Types of Sexual Offence Must be Reported?

The umbrella term “child sexual offence” covers a wide range of potential offences against children.

The unhelpful official definition is that a “child sexual offence” means “an offence of a sexual nature committed in relation to a child”.

In real terms, it includes all the sexual offences you would expect, such as:

  1. rape;
  2. incest;
  3. “grooming”;
  4. child exploitation material/pornography;
  5. indecent treatment of a child, which itself includes:
    1. fondling
    2. asking children to touch sexual body parts
    3. taking sexual images of children.

This article can’t elaborate on all possible sexual offences, but suffice it to say that if it is sexual in nature and involves a child, there’s a good chance it’s a potential offence. You should investigate further if you’re concerned but unsure.

Who is a “Child”

For the reporting obligations, a child is someone:

  1. under 16; or
  2. under 18 with an “impairment of the mind”.

The phrase “impairment of the mind” is not defined, so it’s unclear what type of impairment and what degree of impairment is captured by this phrase.

Obviously the intention is to protect those in a more vulnerable situation, even if they might be over the age of 16 but still a “child”.

Reasonable Belief About a Child Sexual Offence

This is where things start to get a bit more complicated.

The reporting obligation is triggered if:

  1. the adult gains information;
  2. that information:
    1. causes the adult to believe on reasonable grounds; or
    2. ought to reasonably cause the adult to believe,

that a child sexual offence:

  1. is being; or
  2. has been

committed against the child by another adult.

So let’s take the clear situation: a child tells you that an adult has sexually assaulted them. You have a reporting obligation in this situation unless an exclusion (below) applies.

But there are plenty of less clear situations to consider, such as:

  1. a child you know starts behaving differently, and you are concerned that “something” is happening, but aren’t sure what;
  2. you notice injuries to a child that might be consistent with sexual abuse, but might not be;
  3. you notice that your child seems to have an unusual interaction or relationship with an adult that you had not previously noticed.

These fall into a grey area.

In terms of the reporting obligations, the test is whether the information either causes you to believe something on reasonable grounds, or ought to reasonably cause you to believe. Unlike many situations, this is not the “ordinary person” test – so it is about you, in your context, with your information.

Given the potential serious ramifications of a police investigation, and the potential serious ramifications of there not being a police investigation, we recommend:

  1. consider what information you actually have (not speculation about information you do not actually have);
  2. ask what the information naturally causes you to believe;
  3. if you remain unsure then seek advice, either legal or otherwise, from someone you trust.

Exceptions to the Reporting Obligations

So if the criteria are met, then you must report the information to a police officer unless you have a “reasonable excuse”.

So is “reasonable excuse” defined? No, not really.

What we have is a few examples of what will count as a reasonable excuse, but not an exhaustive list. Those examples are:

  1. You reasonably believe it’s already been reported (either to the police, or to a number of other bodies including child protective services);
  2. When you gain the information, the child has become an adult and you reasonably believe (eg – they tell you) that they do not want the information disclosed to a police officer;
  3. If both of these apply:
    1. You reasonably believe that reporting to police would endanger someone’s safety other than the alleged offender; and
    2. Failing to disclose is a reasonable response in the circumstances.

If you meet these, then you can fairly safely say that you have a “reasonable excuse” not to disclose the information.

However, bear in mind there might be other circumstances which could be a “reasonable excuse” – the legislation just doesn’t make it clear, and so we hesitate to guess what might count.

What are the Penalties for Failing to Report?

If you were required to report the information to the police and did not do so, then the offence (strictly, a misdemeanour) carries a maximum penalty of 3 years imprisonment.

Other Comments about Reporting Sexual Offences against Children

There are a few other comments worth making about the new offence:

  1. The legislation does not apply retrospectively if you found out the information before 5 July;
  2. It does, however, apply “retrospectively” if you receive information now about something that is said to have occurred before 5 July 2021;
  3. Provided you act in good faith, the legislation protects you from civil, criminal or administrative consequences of reporting the information to the police. So, in short, you can’t be sued for complying with the legislation.

Reporting Sexual Offences against Children – General Comments

The new legislation answers the recommendations out of the royal commission into offences against children.

The implementation seeks to address perceived errors or problems of the past, in particular around the hiding of criminal conduct in this area.

However, the drafting of the obligations is considerably subjective. The reporting obligation rests entirely on the “reasonable” belief an adult has about the ramifications of certain information. This will inevitably result in uncertainty about what is or is not “reasonable” in this area.

Time will tell whether the reporting obligations and other steps the Queensland government have taken here will have a material impact on abuse against children.