Bulletin 59 - Duty to report and duty to protect a child from child abuse

Legal issues bulletin 59 - Interim bulletin: Duty to report and duty to protect a child from child abuse

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Executive Summary

School and other departmental staff have mandatorily reported child abuse for many years. The Department of Education has also long been legally obliged to take reasonable steps to protect students from foreseeable risk of harm.

The NSW Government has amended the criminal law to strengthen the protection of children in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.  Two new offences, reflecting these existing legal duties, have been established:

  • failure to protect a child from child abuse in which an adult with the power or responsibility to act, knows there is a serious risk of a child becoming a victim of abuse, and negligently fails to reduce or remove that risk (s43B of the Crimes Act)
  • failure to report child abuse in which an adult knows, believes or reasonably ought to know that a child abuse offence has been committed against a child and, without reasonable excuse, does not report that offence to the police (s316A).

The maximum penalty for each of these offences is 2 years’ imprisonment.

There should be little impact on existing practices in NSW government schools that are complying with the department’s existing policies and procedures dealing with:

  • mandatory reporting of child protection concerns
  • responding to allegations against employees in the area of child protection
  • assessing and managing risk and
  • incident reporting (which already includes a system reporting to police).

A checklist for staff who know, believe or reasonably ought to know a child abuse offence has been committed is at attachment A. (PDF 354.4KB) The checklist should be retained with the student’s records as it may be evidence of action taken by a staff member in response to s316A of the Crimes Act.

Key Terms

  • Actual bodily harm includes where there is an injury from the assault such as a bruise, swelling or graze
  • Adult means a person aged 18 or over and includes school staff, parents, volunteers and other members of the community
  • Child means a person under the age of 18
  • Child abuse offence is broadly defined and includes very serious offences such as murder, kidnapping or sexual assault. It also includes actual bodily harm, grievous bodily harm and school related offences.   The behaviour of one child towards another child may be caught by this provision – but note that that the ‘failure to protect’ offence only applies to the behaviour of adults. A consolidated list of child abuse offences is at attachment B (PDF 129.54KB).
  • Grievous bodily harm is very serious harm of the worst kind often causing permanent injury which will cause the victim serious ongoing problems
  • Mandatory report means a report made in accordance with the applicable requirements under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998
  • Negligence could include deliberate acts, or omissions or both
  • School related offences applies to a person (including a student):
    • who assaults, stalks, harasses or intimidates any school student or member of staff of a school while they are attending school, although no actual bodily harm is occasioned
    • who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault causes actual bodily harm
    • who wounds or causes grievous bodily harm to a school student or member of staff while they are attending school and, is reckless as to causing actual bodily harm to that student or member of staff
    • who enters a school premises with intent to commit a school related offence
  • Worker means an employee, self-employed person such as a contractor, a volunteer, a person undertaking training as part of an educational or vocational course,  a minister, priest, rabbi or mufti or similar religious leader or spiritual officer of a religion

The Failure to Protect offence

How is the offence committed?

A person will commit the offence if they know that a worker in the Department of Education poses a serious risk of physically or sexually abusing a child. For the offence to apply, the risk will need to exist at the time that it is apparent to the person.

The person will also need to have the power to reduce or remove the risk, by virtue of their position in the organisation, and be criminally negligent in their failure to reduce or remove the risk. Either deliberate acts or omissions, or both, could amount to a negligent failure to reduce or remove the risk.

The offence is targeted at those in positions of authority and responsibility in organisations working with children who, rather than use their power to protect children, turn a blind eye to a known and serious risk.

Who could be a position holder in the Department of Education?

Depending on the circumstances, a position holder may include:

  • a member of the department’s executive, such as an Executive Director School  Performance, who has the power or responsibility to remove a member of staff from a school in circumstances where they are aware there is a serious risk that the staff member will commit a child abuse offence and negligently fails to act in response to that risk and
  • a principal who is aware there is a serious risk that a volunteer or contractor working in their school will commit a child abuse offence and fails to take reasonable action to prevent that person volunteering or working at a school.

What should a position holder do if they become aware of a potential risk?

Position holders who become aware that there is a potential serious risk that a worker will commit a child abuse offence should deal with it in the same way as they would deal with a matter under the Child Protection: Allegations Against Employees policy. They should also immediately notify their immediate supervisor. For a principal this is the Director Educational Leadership and for an Executive Director, this is the Deputy Secretary.

What is the new Failure to Report Offence?

How is the failure to report offence committed?

An adult commits an offence where he or she:

  • knows, believes or reasonably ought to know that a child abuse offence has been committed and
  • knows or reasonably ought to know that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence and
  • fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force as soon as it is practicable to do so.

Who does the offence apply to?

The offence applies to all adults, not just mandatory reporters.

When will there be a reasonable excuse not to report a matter to the police?

An adult has a reasonable excuse not to report a matter to the police if:

  1. her or she believes on reasonable grounds that the information is already known to the police – for example, a teacher is present when the principal contacts the police
  2. he or she has made a mandatory report to DCJ or the department’s Child Wellbeing Unit
  3. he or she believes on reasonable grounds another person has made a mandatory report to the Department of Communities and Justice (DCJ ) or the department’s Child Wellbeing Unit (CWU) – for example, a school counsellor is present when the principal contacts DCJ or the CWU or, if not present, has been told that the report has been made and has been provided with the DCJ Engagement number
  4. he or she has reasonable grounds to fear for the safety of the person or any other person (other than the offender) if the information were reported to the police. While this means a matter doesn’t have to be reported to the police, staff must consider whether a mandatory report needs to be made to DCJ or the CWU
  5. the information was obtained by a person when he or she was under the age of 18 – this means that a child who has been abused, or is aware other children have been abused, is not required to report the abuse once they have turned 18
  6. the alleged victim was an adult at the time the information was obtained and the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to the police.

It is possible that there will be other occasions where an adult will have a reasonable excuse not to bring information to the attention of the police. This can should be determined on a case by case basis and could, depending on the seriousness of the incident concerned, include:

  1. situations in which a student with a significant cognitive impairment injures another student
  2. situations where one child has injured another and the injury, while not occasioning actual bodily harm, is nevertheless potentially an offence under 60E of the Crimes Act 1900

Do incidents involving the behaviour of children under 10 need to be brought to the attention of the police?

The behaviour of children under 10 does not need to be brought to the attention of the police. Section 5 of the Children (Criminal Proceedings) Act 1987 states that a child under the age of 10 years cannot be guilty of a criminal offence. However, it may be necessary to make a mandatory report or incident report to the department’s Health & Safety directorate in relation to incidents involving the behaviour of children under 10.

What about the behaviour of children aged 10 and over?

Once a child has turned 10 there is a potential their behaviour could constitute a child abuse offence. In the absence of a reasonable excuse, this behaviour should be brought to the attention of the police.

How are matters brought to the attention of the police?

Any adult is able to bring matters to the attention of the police directly. This includes bringing a matter to the attention of a School Liaison Police Officer already working with the school.

A report by a staff member to the department’s Incident Support and Reporting Unit, which is staffed by police officers, will also bring the matter to the attention of the police. That unit will notify the Local Area Command if there are reasonable grounds to believe a child aged 10 or over may have committed a child abuse offence.

Have my responsibilities as a mandatory reporter changed?

No.  Staff must continue to make a mandatory report to DCJ or the CWU consistent with their obligations under the Children and Young Persons (Care and Protection) Act 1988. Further information about this requirement is found in the department’s Protecting Children and Young Persons Policy and Procedure. Staff who make a mandatory report are not required to make a separate report to the police.

Do I still need to notify the department’s Incident Support Unit of what has occurred?

Yes. Staff should continue to notify the department’s Incident Support Unit of an incident, consistent with the department’s Incident Reporting policy and procedures.  Staff who notify the Incident Support Unit of an incident will have a reasonable excuse not to also bring the incident to the attention of the police.

What should I do if I am unsure whether an incident potentially constitutes a child abuse offence?

Contact the department’s Incident Support Unit or Legal Services for advice as to whether an incident potentially constitutes a child abuse offence.

What should I do if I am asked to provide information or a statement to the police?

Staff should contact Legal Services for advice if asked to provide information or a statement to the police.

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