The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020
Update: On 13 May 2021, the Queensland Governor Paul de Jersey proclaimed that these new provisions will commence from 5 July 2021.
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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 two new offences provided for under Section 229BB – Failure to protect child from child sexual offence and Section 229BC – Failure to report belief of child sexual abuse.
These new sections reflect the existing mandatory reporting obligations that already apply to schools, and the existing duty of care that schools have at common law.
Under section 229BB (the “Failure to Protect” offence), any adult associated with an institution who fails to reduce or remove a significant risk of a child sexual offence (and has the power to do so) will be liable to a maximum penalty of 5 years imprisonment.
Additionally, under section 229BC (the “Failure to Report” offence), 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 229BB(1) – the “Failure to Protect” offence, is provided in full below:
(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.
Maximum penalty—5 years imprisonment.
Section 229BC (1)-(2) – the “Failure to Report” offence, 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.”
Maximum penalty—3 years imprisonment.
Who does the mandatory reporting provision apply to?
The ”Failure to Protect” offence under section 229BB applies to all adults who are associated with, or are engaged as a volunteer with, any kind of institution, and has the power or responsibility to reduce or remove the risk. Institutions may include schools, religious organisations, hospitals, youth organisations and child-care centres. An associated adult is someone who owns, is employed by, engages with an activity of, or engages in the delivery of a service to a child for, an institution.
The ”Failure to Report” offence under section 229BC, applies to all adults, not just religious workers/volunteers. This means any adult working in any type of institution have a duty to report a reasonable belief of child sexual abuse to Police.
Both offences will arise where the victim was under 16 at the time of the offence, or was over the age of 16 but suffers from a mental disability.
What Defences are available for the Failure to Report?
There are reasonable excuses and defences in relation to the Failure to Report section. Under section 229BC an adult has a reasonable excuse if:
- They have already reported, or believe on reasonable grounds that another person has already reported, the matter under the provisions of the Child Protection Act 1999 or the Education (General Provisions) Act 2006;
- they believe on reasonable ground that information has already been provided to a police officer (s 229BC(4)(a));
- they become aware of the information after the child becomes an adult, and the adult believes the alleged victim does not want the information to be disclosed to a police officer (s229BC(4)(c));
Commencement of New Provisions
On 13 May 2021, the Queensland Governor Paul de Jersey proclaimed that these new provisions would commence from 5 July 2021.
If you have questions about child protection matters, contact us
Call (07) 3252 0011 and speak with our client engagement team for an appointment with our Litigation lawyers today.