Three Key Changes to the QLD Criminal Code relating to Child Sexual Offences Reform

Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020

The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 was assented to by Queensland Parliament on 14 September 2020.  

This article will summarise three key changes to the Criminal Code which have arisen from this amending Act. Note the changes are to take effect on a day to be fixed by proclamation.

Section 218B: A new ‘grooming’ offence

While it is of course an offence to engage in sexual activity with a child under the age of 16 years, it is not in and of itself an offence for an adult to engage in conduct to facilitate these sexual acts. This conduct is more commonly referred to as ‘grooming’.

The new section 218B(2) of the Criminal Code will now insert a new grooming offence into the Criminal Code. The proposed section provides:

An adult who engages in conduct in relation to a child, or a person who has care of a child – with intent to –

(a) Facilitate the procurement of the child to engage in a sexual act, either in Queensland or elsewhere; or, 

(b) Expose, without legitimate reason, the child to any indecent matter, either in Queensland or elsewhere;

Commits a crime”

The legislation makes it clear that it does not matter when the adult intended the child would be procured to engage in a sexual act.[1] 

The maximum penalty is five years imprisonment and this increases to 10 years imprisonment if the child is under 12 years of age.[2]

Section 229BB – Failure to protect child from child sexual offence

This new legislation criminalises adults in certain positions of care who know of a significant risk that an offender will commit a child sexual offence in relation to a child and fail to take action to remove the risk.

The legislation applies to an “accountable person” and includes any adult associated with an institution such as: adults engaged in the delivery of a service to a child; employees; managers and volunteers.[3]

The offence also applies in respect of children under an institution’s care, custody or control, and where the alleged offender is also associated with an institution. An institution in this instance may include a school, a church, a club, an orphanage or children’s home.

For completeness, section 229BB(1) of the Act relevantly provides:

(1) “An accountable person commits a crime if-

 (a) The person knows there is a significant risk that another adult (the alleged offender) will commit a child sexual offence in relation to a child; and,

 (b) The alleged offender –

 (i) Is associated with an institution; or

(ii) Is a regulated volunteer; and,

 (c) The child is under the care, supervision or control of an institution; and

 (d) The child is either:

 (i) Under 16 years; or

 (ii) A person with an impairment of the mind; and

 (e) The person has the power or responsibility to reduce or remove the risk; and

 (f) The person wilfully or negligently fails to reduce or remove the risk.” (emphasis added)

The maximum penalty for this offence is five years imprisonment.[4]

Section 229BC – Failure to report belief of child sexual offence

This new section criminalises any adult who fails to disclose relevant information to a police officer in circumstances where the information causes the adult to believe that a child sexual offence is being committed or has been committed against a child.  

Section 229BC (1)-(2) is provided in full below:

(1) This section applies to an adult if –

 (a) The adult gains information that causes the adult to believe on reasonable grounds, or 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,

 (b) At the relevant time, the child is or was –  

(i) Under 16 years; or 

(ii) A person with an impairment of the mind. 

(2) If, without reasonable excuse, the adult fails to disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought reasonably to have been, formed, the adult commits a misdemeanour.”

The maximum penalty for this offence is 3 years imprisonment. 

The Failure to Report offence differentiates itself to the Failure to Protect offence in that it applies to all adults and not just religious workers/volunteers. It will arise where the victim was under 16 at the time of the offence (so can apply to historical abuse claims) or suffers from a mental disability.

The new provision provides examples of what may be considered a “reasonable excuse”. For example, where a person only gains the information after the child (the alleged victim) becomes an adult and the alleged victim does not want the information disclosed to a police officer.[5]

There are reasonable excuse defences (such as the victim is now an adult and does not want the matter reported to police). However, “religious confession” is not a reasonable excuse. [6]

Commencement of New Provisions

It is worth noting both offences are yet to commence. The new provisions will commence by proclamation, which means the new provisions will come into effect on a date set by Government. At the writing of this article, a proclamation date had not been set.

This article was written by Luke Borgert and edited by Francisca Mayer.

Footnotes

[1] Criminal Code s 218B(8).

[2] Criminal Code s 218B(3).

[3] Criminal Code s 229BB(3).

[4] Criminal Code s 229BB(1).

[5] Criminal Code s 229BC(4)(c).

[6] Criminal Code s 229BC(3).

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