Failure to Report and Failure to Protect
Strengthened child sexual offence reporting and protection laws come into effect on Monday, 5 July 2021.
These laws, which emerged from the ‘Child Abuse Royal Commission’ will apply to schools, churches, and sporting clubs.
There are two relevant changes to the law which affect sport and create new criminal offences.
- Failure to protect a child from, or take steps to remove the risk of, a sexual offence; and
- Failure to report a belief of a child sexual offence (either current or past).
Failure to Protect Offence
A new offence has been created when adults in organisations such as sporting clubs, schools, churches and childcare centres fail to act on knowledge of a significant risk to a child participating in their organisation being subjected to a sexual offence.
Acting to protect the child at risk means that if the responsible adult has the power or responsibility to remove that risk, they must do so. For example, if an adult holding a position that requires them to exercise a duty of care towards a child has knowledge of a risk of a sexual offence being committed upon a child, failure to act can result in a maximum jail term of five years.
In the context of a sporting club or organisation, this offence applies to board members, employees and volunteers.
Failure to Report Offence
The other new offence relates to failing to make a report to police. This section is wide-ranging in that it covers adults who believe, on reasonable grounds, or even should have believed, that a child sexual offence is either being committed against a child or has previously been committed. If that person fails to make a police report immediately after becoming aware (or being deemed to have been expected to know by virtue of their position), up to three years imprisonment applies.
A defence does exist to this provision however, which is contained in the definition of ‘reasonable excuse’.
Reasonable excuses include:
- believing the matter has already been reported;
- if the alleged victim is now an adult and they do not want the matter reported; and
- if reporting the matter could endanger the alleged victim;
Anyone who in “good faith” makes a disclosure to police is not liable in any way for having done so, regardless of its accuracy.
Recommendations for Sporting Clubs and Organisations
What is required is a level of diligence and attention to ensure compliance with these obligations. Obviously ensuring persons have ‘blue cards’ is the starting point.
It is also suggested that there should be a set agenda item for all management committee meetings dealing with these new requirements. This will ensure that they are top of mind for the association and all participants.
I believe the following is the basis for developing a positive child protection culture in your club or organisation are:
- Child protection and safeguarding children from sexual abuse needs to be everyone’s responsibility: Child protection and safeguarding children should be an issue that is openly, and regularly, talked about. This helps others to engage with the issue and know it is front of mind for all officials, volunteers, participants, and supporters.
- Empower children: Proactively authorise, give permission, and encourage children to speak up and complain if something is not right. Tell children they will be believed if they speak up about their concerns, and that action will be taken to investigate their complaint.
- Appoint the right people for children to talk to: Ensure there are a wide range of people who can take complaints from children. This is about making the child comfortable to come forward, and may require a range of people of different ages, genders, and authority levels. Let children know who they can go to if they need to speak to someone.
- Appoint the right people to process the complaint: The people you designate as responders need to have the skill set and mindset which makes them capable of listening to children, recording their complaint or concern and passing this on for appropriate action. This may require empathy and process skills and is very much a ‘horses for courses’ role you should think seriously about.
- Do something about the complaint: The child raising a complaint may need support and assistance. Your club or organisation must respond to any allegation that is raised, and to be aware of your reporting requirements. But most importantly, take steps to address the issue and continue to safeguard all children you owe a duty of care to.
Video link: Surf Life Saving Australia