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This is a Bill, not an Act. For current law, see the Acts databases.
Crimes Amendment (Protection of Children) Act
2014
No. of 2014
TABLE OF PROVISIONS
Clause Page
1 Purposes 1
2 Commencement 2
3 New section 49C inserted 3
49C Failure by person in authority to protect child from
sexual offence 3
4 New sections 327, 328, 329 and 330 inserted 6
327 Failure to disclose sexual offence committed against
child under the age of 16 years 6
328 Protection of those who disclose under section 327 10
329 Evidence and legal proceedings 10
330 Confidentiality 11
5 New section 622 inserted 12
622 Transitional provision--Crimes Amendment
(Protection of Children) Act 2014 12
6 Amendment of other Acts 13
7 Amendments consequential on Victoria Police Act 2013 14
8 Amendment consequential on Mental Health Act 2014 15
9 Repeal of amending Act 15
ENDNOTES 16
i
Crimes Amendment (Protection of
Children) Act 2014
No. of 2014
[Assented to ]
The Parliament of Victoria enacts:
1 Purposes
The purposes of this Act are--
(a) to amend the Crimes Act 1958 to insert new
offences in relation to the sexual abuse of
children and to make consequential
amendments to other Acts; and
(b) to amend the Serious Sex Offenders
(Detention and Supervision) Act 2009 to
include an offence against section 49B of the
Crimes Act 1958 in Schedule 1 to that Act.
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Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 2
2 Commencement
(1) Section 1 and this section come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) Section 7 comes into operation on the later of--
(a) the day on which section 4 comes into
operation; or
(b) the day on which section 278 of the Victoria
Police Act 2013 comes into operation.
(3) Section 8 comes into operation on the later of--
(a) the day on which section 4 comes into
operation; or
(b) the day on which section 455 of the Mental
Health Act 2014 comes into operation.
(4) Subject to subsection (5), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(5) If a provision referred to in subsection (4) does
not come into operation before 1 July 2015, it
comes into operation on that day.
2
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 3
3 New section 49C inserted
At the end of Subdivision (8C) of Division 1 of See:
Act No.
Part I of the Crimes Act 1958 insert-- 6231.
Reprint No. 24
"49C Failure by person in authority to protect as at
1 July 2013
child from sexual offence and
amending
(1) In this section-- Act Nos
16/2004,
person associated with an organisation 27/2011,
includes but is not limited to a person 60/2013,
70/2013,
who is an officer, office holder, 72/2013,
employee, manager, owner, volunteer, 77/2013,
7/2014 and
contractor or agent of the organisation 8/2014.
but does not include a person solely LawToday:
www.
because the person receives services legislation.
from the organisation; vic.gov.au
relevant child means a child (whether
identifiable or not) under the age of
16 years who is, or may come, under
the care, supervision or authority of a
relevant organisation;
relevant organisation means--
(a) an organisation that exercises
care, supervision or authority over
children, whether as part of its
primary functions or otherwise,
and includes but is not limited
to--
(i) a church; and
(ii) a religious body; and
(iii) a school; and
(iv) an education and care service
within the meaning of the
Education and Care
Services National Law
(Victoria); and
3
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 3
(v) a children's service within
the meaning of the
Children's Services Act
1996; and
(vi) an out of home care service
within the meaning of the
Children, Youth and
Families Act 2005; and
(vii) a hospital; and
(viii) a government department;
and
(ix) a government agency; and
(x) a municipal council; and
(xi) a public sector body; and
(xii) a sporting group; and
(xiii) a youth organisation; and
(xiv) a charity or benevolent
organisation; or
(b) an organisation that, in accordance
with an agreement or arrangement
with an organisation referred to in
paragraph (a), is required or
permitted to engage in activities
associated with the care,
supervision or authority over
children exercised by the
organisation referred to in
paragraph (a);
sexual offence means--
(a) an offence under Subdivision
(8A), (8B), (8C), (8D), (8E) or
(8EAA) of Division 1 of Part I or
under any corresponding previous
enactment; or
4
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 3
(b) an attempt to commit an offence
referred to in paragraph (a); or
(c) an assault with intent to commit
an offence referred to in paragraph
(a).
(2) A person who--
(a) by reason of the position he or she
occupies within a relevant organisation,
has the power or responsibility to
reduce or remove a substantial risk that
a relevant child will become the victim
of a sexual offence committed by a
person of or over the age of 18 years
who is associated with the relevant
organisation; and
(b) knows that there is a substantial risk
that that person will commit a sexual
offence against a relevant child--
must not negligently fail to reduce or remove
that risk.
Penalty: Level 6 imprisonment (5 years
maximum).
(3) For the purposes of subsection (2), a person
negligently fails to reduce or remove a risk if
that failure involves a great falling short of
the standard of care that a reasonable person
would exercise in the circumstances.
(4) For the avoidance of doubt, in a prosecution
for an offence against subsection (2), it is not
necessary to prove that a sexual offence has
been committed.
5
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
(5) It is immaterial that some or all of the
circumstances constituting an offence against
subsection (2) occurred outside Victoria, so
long as the relevant child was in Victoria at
the time at which the substantial risk referred
to in subsection (2)(b) occurred.
(6) It is immaterial that both the accused and the
child were outside Victoria at the time at
which some or all of the circumstances
constituting an offence against subsection (2)
occurred, so long as the sexual offence was
at risk of occurring in Victoria.".
4 New sections 327, 328, 329 and 330 inserted
After section 326 of the Crimes Act 1958
insert--
"327 Failure to disclose sexual offence
committed against child under the age of
16 years
(1) In this section--
interests includes reputation, legal liability
and financial status;
organisation includes a body corporate or
an unincorporated body or association,
whether the body or association--
(a) is based in or outside Australia; or
(b) is part of a larger organisation;
sexual offence means--
(a) an offence under Subdivision
(8A), (8B), (8C), (8D), (8E)
or (8EAA) of Division 1 of Part I
or under any corresponding
previous enactment; or
6
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
(b) an attempt to commit an offence
referred to in paragraph (a); or
(c) an assault with intent to commit
an offence referred to in
paragraph (a).
(2) Subject to subsections (5) and (7), a person
of or over the age of 18 years (whether in
Victoria or elsewhere) who has information
that leads the person to form a reasonable
belief that a sexual offence has been
committed in Victoria against a child under
the age of 16 years by another person of or
over the age of 18 years must disclose that
information to a member of the police force
of Victoria as soon as it is practicable to do
so, unless the person has a reasonable excuse
for not doing so.
Penalty: 3 years imprisonment.
(3) For the purposes of subsection (2) and
without limiting that subsection, a person has
a reasonable excuse for failing to comply
with that subsection if--
(a) the person fears on reasonable grounds
for the safety of any person (other than
the person reasonably believed to have
committed, or to have been involved in,
the sexual offence) were the person to
disclose the information to police
(irrespective of whether the fear arises
because of the fact of disclosure or the
information disclosed) and the failure
to disclose the information to police is a
reasonable response in the
circumstances; or
7
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
(b) the person believes on reasonable
grounds that the information has
already been disclosed to police by
another person and the firstmentioned
person has no further information.
Example
A person may believe on reasonable grounds
that the information has already been disclosed
to police by another person if the person has
made a report disclosing all of the information
in his or her possession in compliance with
mandatory reporting obligations under the
Children, Youth and Families Act 2005.
(4) For the purposes of subsection (2) and
without limiting that subsection, a person
does not have a reasonable excuse for failing
to comply with that subsection only because
the person is concerned for the perceived
interests of--
(a) the person reasonably believed to have
committed, or to have been involved in,
the sexual offence; or
(b) any organisation.
(5) A person does not contravene subsection (2)
if--
(a) the information forming the basis of the
person's belief that a sexual offence has
been committed came from the victim
of the alleged offence, whether directly
or indirectly; and
(b) the victim was of or over the age of
16 years at the time of providing that
information to any person; and
(c) the victim requested that the
information not be disclosed.
8
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
(6) Subsection (5) does not apply if--
(a) at the time of providing the
information, the victim of the alleged
sexual offence--
(i) has an intellectual disability
(within the meaning of the
Disability Act 2006); and
(ii) does not have the capacity to
make an informed decision about
whether or not the information
should be disclosed; and
(b) the person to whom the information is
provided is aware, or ought reasonably
to have been aware, of those facts.
(7) A person does not contravene subsection (2)
if--
(a) the person comes into possession of the
information referred to in subsection
(2) when a child; or
(b) the information referred to in
subsection (2) would be privileged
under Part 3.10 of Chapter 3 of the
Evidence Act 2008; or
(c) the information referred to in
subsection (2) is a confidential
communication within the meaning of
section 32B of the Evidence
(Miscellaneous Provisions) Act 1958;
or
(d) the person comes into possession of the
information referred to in subsection
(2) solely through the public domain or
forms the belief referred to in
subsection (2) solely from information
in the public domain; or
9
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
(e) the person is a member of the police
force acting in the course of his or her
duty in respect of the victim of the
alleged sexual offence; or
(f) the victim of the alleged sexual offence
has attained the age of 16 years before
the commencement of section 4 of the
Crimes Amendment (Protection of
Children) Act 2014.
328 Protection of those who disclose under
section 327
A disclosure made under section 327(2) in
good faith--
(a) does not for any purpose constitute
unprofessional conduct or a breach of
professional ethics on the part of the
person by whom it is made; and
(b) does not make the person by whom it is
made subject to any liability in respect
of it; and
(c) without limiting paragraphs (a) and (b),
does not constitute a contravention of--
(i) section 141 of the Health
Services Act 1988; or
(ii) section 120A of the Mental
Health Act 1986.
329 Evidence and legal proceedings
(1) In any legal proceeding evidence may be
given as to the information contained in a
disclosure under section 327(2).
(2) However in a legal proceeding evidence that
a particular matter is contained in
information disclosed under section 327(2)
or evidence that identifies the person who
10
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 4
made that disclosure, or is likely to lead to
the identification of that person is only
admissible in the proceeding if--
(a) the court or tribunal grants leave for the
evidence to be given; or
(b) the person who made the disclosure
consents in writing to the admission of
that evidence.
(3) A witness appearing in a legal proceeding
must not be asked and, if asked, is entitled to
refuse to answer--
(a) any question to which the answer
would or might identify the person who
made a disclosure under section 327(2)
or would or might lead to the
identification of that person; or
(b) any question as to whether a particular
matter is contained in information
disclosed under section 327(2)--
unless the court or tribunal grants leave for
the question to be asked or the person who
made the disclosure has consented in writing
to the question being asked.
(4) A court or tribunal may only grant leave
under subsection (2) or (3) if it is satisfied
that the interests of justice require that the
evidence be given.
330 Confidentiality
(1) If a disclosure is made under section 327(2),
a person (other than the person who made it
or a person acting with the written consent of
the person who made it) must not disclose to
any person other than a member of the police
force or the Secretary (within the meaning of
the Children, Youth and Families Act
11
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 5
2005) or any other person to the extent
reasonably required for law enforcement
purposes--
(a) the name of the person who made the
disclosure; or
(b) any information that is likely to lead to
the identification of the person who
made the disclosure.
Penalty: Level 8 imprisonment (1 year
maximum).
(2) Subsection (1) does not apply to a disclosure
made to a court or tribunal in accordance
with section 329.
(3) Part 4.4 of Chapter 4 of the Children, Youth
and Families Act 2005 applies to
information disclosed under subsection (1) to
the Secretary (within the meaning of that
Act) as if it were a report under Division 2 of
that Part.".
5 New section 622 inserted
At the end of Part 7 of the Crimes Act 1958
insert--
"622 Transitional provision--Crimes
Amendment (Protection of Children) Act
2014
(1) Section 49C as inserted by section 3 of the
Crimes Amendment (Protection of
Children) Act 2014 applies to an offence
alleged to have been committed on or after
the commencement of section 3 of that Act,
irrespective of when the risk was created.
(2) Section 327 as inserted by section 4 of the
Crimes Amendment (Protection of
Children) Act 2014 applies to a person if
the victim of the alleged sexual offence is
12
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 6
still a child under the age of 16 years on the
commencement of section 4 of that Act
(irrespective of whether information is
received or a reasonable belief is formed
before or after the commencement of
section 4 of that Act) unless the person has
already disclosed the information referred to
in section 327(2) to a member of the police
force of Victoria before the commencement
of section 4 of that Act.".
6 Amendment of other Acts
(1) After section 13(1)(fb) of the Working with
Children Act 2005 insert--
"(fc) who has at any time (whether before, on or
after the commencement of this section)
been convicted or found guilty of an offence
against section 49C or 327 of the Crimes
Act 1958 or an offence under a law of a
jurisdiction other than Victoria that, if it had
been committed in Victoria, would have
constituted an offence against section 49C
or 327 of that Act; or".
(2) In section 13(1)(g) of the Working with
Children Act 2005, for "(fa) or (fb)" substitute
"(fa), (fb) or (fc)".
(3) After section 187(2) of the Children, Youth and
Families Act 2005 insert--
"(3) If a report contains information that must be
disclosed under section 327 of the Crimes
Act 1958, the Secretary must report the
information to a member of the police force
of Victoria as soon as practicable after
receiving the report.".
13
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 7
(4) In Schedule 1 to the Serious Sex Offenders
(Detention and Supervision) Act 2009--
(a) omit items 3 and 4;
(b) after item 7 insert--
"7A An offence against section 47A of the
Crimes Act 1958 (persistent sexual
abuse of child under the age of 16).";
(c) after item 8 insert--
"8A An offence against section 49A of the
Crimes Act 1958 (facilitating sexual
offences against children).
8B An offence against section 49B(2) of
the Crimes Act 1958 (grooming for
sexual conduct with child under the age
of 16 years).".
7 Amendments consequential on Victoria Police
Act 2013
(1) In section 327 of the Crimes Act 1958--
(a) in subsection (2), for "member of the police
force of Victoria" substitute "police officer";
and
(b) in subsection (7)(e), for "member of the
police force" substitute "police officer".
(2) In section 330(1) of the Crimes Act 1958, for
"member of the police force" substitute
"police officer".
(3) In section 622(2) of the Crimes Act 1958, for
"member of the police force of Victoria"
substitute "police officer".
(4) In section 187(3) of the Children, Youth and
Families Act 2005, for "member of the police
force of Victoria" substitute "police officer".
14
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
s. 8
8 Amendment consequential on Mental Health
Act 2014
For section 328(c)(ii) of the Crimes Act 1958
substitute--
"(ii) section 346 of the Mental Health Act
2014.".
9 Repeal of amending Act
This Act is repealed on 1 July 2016.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
15
Crimes Amendment (Protection of Children) Act 2014
No. of 2014
Endnotes
ENDNOTES
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Crimes Act 1958, the Working with Children Act 2005, the Children,
Youth and Families Act 2005 and the Serious Sex Offenders
(Detention and Supervision) Act 2009 in relation to the sexual abuse of
children and for other purposes."
By Authority. Government Printer for the State of Victoria.
16
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