There were important changes due to commence on 9 July 2012, regarding the mandatory reporting of sexual abuse by schools.
The Minister for Education, Training and Employment further announced a partial deferment of these changes, with the remaining changes still to commence on 9 July 2012.
This Update discusses these changes.
Existing obligations of Mandatory Reporting of Sexual Abuse
Section 366 of the Education (General Provisions) Act 2006 currently requires staff members of non-state schools who first become aware, or reasonably suspect, sexual abuse by another school employee towards:
- Students of the school (but under 18 years); or
- Students with a disability being provided with special education
to immediately submit a written report to the school’s principal or a director of the school’s governing body.
The Principal or a Director must then give a copy of the report to a police officer and a failure to report is an offence under the Act. The Act does not define Sexual Abuse and it takes its usual meaning.
Changes that will commence on 9 July 2012
The reporting obligations will still only apply to students of the school under 18 years or students with a disability being provided with special education (a “relevant person”).
The amendments would however expand obligations relating to circumstances where a staff member reasonably suspects the sexual abuse has been perpetrated by any person.
This obligation will only apply where the staff member becomes aware or forms a suspicion during the course of their employment.
Sexual abuse is now also defined in the legislation as including sexual behaviour involving a relevant person and another person in the following circumstances:
- The other person bribes, coerces, exploits, threatens or is violent towards the relevant person;
- The relevant person has less power than the other person;
- There is significant disparity between the relevant person and the other person in intellectual capacity or maturity.
Importantly, the extension to “any person” means that it can involve sexual abuse by a parent, third party or fellow student.
When dealing with sexual behaviour between students, care must be taken particularly when that behaviour could amount to sexual abuse because of the circumstances of the behaviour or the nature of the relationship between the students.
A failure to report under this provision continues to be an offence.
Changes that have been deferred to the commencement of the 2013 School Year
The amending legislation to take note of included a further reporting obligation where the staff member reasonably suspects that the student is likely to be sexually abused.
Under the amending legislation, a failure to report likely sexual abuse was not intended to be a criminal offence.
This obligation was to commence on 9 July 2012, however because of concerns that the failure to report might be a misdemeanour under the Criminal Code, the Minister has deferred the commencement of this provision.
The Non-State Schools Accreditation Board has suggested that this reporting obligation will commence in time for the 2013 School Year, although a precise date has not yet been set.
“Likely” is not defined in the legislation, and will take its ordinary meaning. “Likely” has been judicially considered as having a degree of probability that is greater than “possible” but less than “certain”. For a consequence to be likely, it must be substantial and real, and not remote.
As in the existing legislation, a person who makes a report under these provisions is protected from any criminal, civil or administrative liability, including defamation, and is relieved of their obligations of confidence.
Other Reporting Obligations
It is important to understand that mandatory reporting for schools and their employees is not restricted to the reporting of sexual abuse. Various reporting obligations are also included in:
- the Education (General Provisions) Act 2006 (obligation for Non-State Schools to have written processes for dealing with the reporting of harm, or suspected harm, to a student under the age of 18 years);
- the Education (Queensland College of Teachers) Act 2005 (requirement for a school to report to the Queensland College of Teachers any investigation in respect of an allegation of harm by a teacher against a child); and
- the Public Health Act 2005 (obligation for doctors or registered nurses to report harm, or suspected harm, to children – this could extend to school nurses if they are registered nurses).
About the Author
Alistair Macpherson is a Director with Corney & Lind Lawyers, and has extensive experience in advising schools and religious organisations across a range of legal issues, including employment law, discrimination law, dispute resolution, litigation and criminal law. Before joining Corney & Lind Lawyers, he was employed as a legal adviser / solicitor with a number of government organisations, as well as working as a criminal prosecutor.
Until recently, he was a Board Member of Queensland Baptist Care, an organisation that was responsible for schools for disadvantaged youth, counselling services, retirement villages and aged care facilities.
For more information about Mandatory Reporting of child abuse in Schools:
Review the Australian Government website here.
You will also find out more information about Australian Child Protection Legislation here.