The 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.
One of the key changes in this amending act was the creation of a new offence provided for under Section 229BC – Failure to report belief of child sexual abuse.
This new section, in effect, is a mandatory reporting obligation. Any adult who reasonably believes or suspects that a child sexual offence is being committed or has been committed against a child and fails to report it will be liable to a criminal penalty including a maximum penalty of 3 years imprisonment.
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 misdemeanor.”
Who does the mandatory reporting provision apply to?
The new mandatory reporting/failure to report offence applies to all adults, not just religious workers/volunteers. This means any adult working in any type of institution including child care, schools and churches etc have a duty to report a reasonable belief of child sexual abuse.
The Failure to Report offence 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.
The onus of proof of the Failure to Report offence rests with the defendant, as such the defendant has the onus to prove why not reporting the offence was a failure on their behalf.
What Defences are available for the Failure to Report?
There are reasonable excuse defences in relation to the Failure to Report section. Under section 229BC an adult has a reasonable excuse if:
- they believe on reasonable ground that information has already been provided to a police officer (s 229BC(4)(a));
- the adult has already provided the information under the provisions or believes on reasonable grounds another person has done so or will do so (s229BC(4)(b));
- the adult is aware of the information after the child becomes an adult and the adult believes they do not want the information to be disclosed to a police officer (s229BC(4)(c));
Commencement of New Provisions
It is worth noting, the provision has not commenced and will commend by proclamation, meaning the new provision will come into effect on a date set by the Government.
If you have questions about historical child sexual offences, contact us
Call (07) 3252 0011 and speak with our client engagement team for an appointment with our Litigation lawyers today.
Author: Francisca Mayer