Mandatory reporting of child abuse has been a legal obligation for certain professionals in Victoria since 1993, when an amendment to the Children’s and Young Person’s Act 1989 stated that these professionals (teachers, principals, doctors, nurses and police officers) were required to report suspected cases of child abuse to Child Protection. In 2005, the Children, Youth and Families Act replaced prior legislation and also designated youth workers, social workers, childcare workers, psychologists and youth justice workers as mandatory reporters.
The Protecting Victoria’s Vulnerable Children Inquiry in 2012 identified serious concerns regarding the handling of child sexual abuse by religious and non-religious organisations in Victoria, and called for a formal investigation into these organisations and their processes. The Family and Community Development Committee, directed by the Victorian Government, undertook the investigation and produced the Betrayal of Trust Inquiry in November 2013. Based on the recommendations of this inquiry, three new laws regarding child sexual abuse have since been introduced into Victorian legislature:
- failure to protect offences
- grooming offences
- failure to disclose offences.
The failure to protect offence is designed to tackle institutional cover-ups of child sexual abuse, and relates to any person who holds a position in an organisation that works with or cares for children. Under this law, any such individual who fails to report the ‘substantial risk’ of a young person being abused by another member of that organisation could be punished by up to five years imprisonment. This applies to every worker (regardless of position) in any organisation, from Child Protection to churches and schools. Even if reasonable steps are taken to protect young people – such as firing an employee who constitutes a ‘substantial risk’ – individuals could still be charged with failure to disclose. The Crimes Amendment (Grooming) Act commenced on 9 April 2014 and targets predatory conduct designed to facilitate future sexual activity with a child.
The most interesting and far-reaching of these new laws is the failure to disclose offence. This law came into effect on the 27 October 2014 and states that all adults in Victoria must report any ‘reasonable belief’ that a sex offence has been committed by an adult towards a child under the age of sixteen years. Failure to disclose is a criminal offence, punishable by up to three years imprisonment. The types of offences that must be reported include rape, engaging in sex or indecent acts with a minor, grooming, or any assault with intent to commit a sex offence. The law delineates ‘reasonable excuses’ for not reporting, which include:
- fear for your safety
- fear of someone else’s safety being compromised due to reporting (not including the perpetrator’s)
- reasonable belief that someone else has already reported the offence
- a confidentiality request by the victim, so long as they are older than 16 years of age and don’t have an intellectual disability or mental impairment
- that the information is public (you hear it on the news or the offence is being prosecuted in court).
With regards to reporting past abuse, it isn’t mandatory to report unless the individual who was abused was under the age of sixteen as of 27 October 2014. Special laws of privilege do apply for lawyers and journalists, as do confidential communications – these include disclosures of past abuse made to a counsellor during treatment for sexual abuse. It is worth noting that those special laws of privilege still apply to religious confessions, meaning a priest who takes a confession from somebody who confesses to having perpetrated child sexual abuse is not mandated by law to report it.
By virtue of the fact that you are a person who is reading this piece, and are therefore directly affected by this new legislation, I want to know: were you aware of the failure to disclose law? As a youth worker in Victoria, I wasn’t even aware of it until last month. Despite all the noise and legislative changes that are being made by the Victorian and Federal Government to tackle child sexual abuse, very few people or relevant organisations seem aware of the new laws. A cursory search of the terms ‘failure to disclose offence news’ brings up only two news articles in the first ten results, published by the ABC and The Guardian in March and May of this year respectively. The South Eastern Centre Against Sexual Assault (SECASA) website provides outdated information that explicitly reiterates the mandatory reporting obligations of professionals only. SECASA is often held up within community service agencies as the leading advocacy service for sexually abused youth and adults in Melbourne. Of course, it’s not the fault of SECASA, or any other youth agency to have missed this: we can only deal with the (limited) cards we are dealt. While it’s positive to see an official and relevant directive being put in place to tell everybody that ‘we won’t stand for it’, where was the announcement? Where was the crackly PSA delivered through your car stereo while you drove through the Burnley tunnel? This information is so important, and it’s absolutely staggering to see how underreported it was. Ignorance of the law is never a viable defence, of course, so surely there would be an impetus to get this information out to the public – even just to the relevant services?
Even more harrowing is what’s happening in the sector regarding the practice of failure to disclose. While the Department of Justice website encourages non-emergency reports of child sexual abuse to be made with a local police station, there have been tales of back and forths wherein uniformed officers at local police stations know nothing of the new legislation and encourage reporters to contact 000, who in turn encourage callers to make a report at their local police station. According to recent information provided to relevant agencies by Victoria Police, it is most effective to make a report to your local SOCIT (Sexual Offences and Child Abuse Investigation Team) to ensure that they are followed up. It’s fairly reasonable to assume from a lack of relevant press releases and noise-making that no additional funding has been allocated to SOCIT or Child Protection since October 2014 to deal with a potential spike in queries or reports – overzealous or otherwise.
Communications from the Department of Justice and the Betrayal of Trust Inquiry tout that the failure to disclose offence is about making reportage of child abuse a community-wide responsibility. It certainly is in everybody’s best interests to have a public dialogue about child sexual abuse, and if the failure to disclose offence carries the implicit notion that this conversation is necessary, or simply able to be had, then that’s a positive. As is the ethos of the youth sector, it’s generally preferred to over-report than to under-report. But a glaring issue with the failure to disclose offence is the lack of communication – how can a responsibility be fairly foisted upon the community if the government makes no effort to inform that community? In light of the Coalition and Labor recently voting down the mandatory reporting of child sexual abuse taking place offshore detention facilities, the failure to disclose offence seems to hint at yet more governmental lip service. Add to that the determined lack of communication and suspected lack of funding around the failure to disclose offence, and one has to wonder how much this government is prioritising the tackling child sexual abuse in Victoria beyond the bare minimum practice of appearing to do something about it.
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