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Crimes Amendment (Protection of
Children) Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purposes of the Bill. These are to amend the Crimes
Act 1958 by inserting new offences in relation to the sexual
abuse of children and making consequential amendments to other
Acts, and 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.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that section 1 and section 2 come into
operation on the day after the day on which the Act receives
Royal Assent.
Subclause (2) provides that section 7 comes into operation on the
day on which section 4 comes into operation, or the day on
which section 278 of the Victoria Police Act 2013 comes into
operation, whichever is later.
Subclause (3) provides that section 8 comes into operation on the
day on which section 4 comes into operation, or the day on
which section 455 of the Mental Health Act 2014 (currently a
Bill before the Parliament) comes into operation, whichever is
later.
Subclause (4) provides that the remaining provisions of the Act
will come into operation on a day or days to be proclaimed.
571522 1 BILL LA INTRODUCTION 25/3/2014
Subclause (5) provides that if a provision referred to in
subsection (4) does not commence before 1 July 2015, it comes
into operation on that day.
Clause 3 inserts new section 49C into the Crimes Act 1958 to provide for
the offence of failure by a person in authority to protect a child
from a sexual offence.
New section 49C(1) provides the definitions that apply to the
offence.
The definition of person associated with an organisation is an
inclusive definition that includes officers, office holders,
employees, managers, owners, volunteers, contractors and agents
of the organisation. However, the definition does not include a
person solely because the person receives services from the
organisation (for example, a person subject to an order under the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997).
The definition of relevant child makes it clear that a child need
not be identifiable, and covers a child who is, or may come,
under the care, supervision or authority of a relevant
organisation.
Relevant organisation is defined to mean 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 the categories listed in subparagraphs (i) to (xiv) of the
definition. This will ensure that the offence covers a broad range
of organisations, including churches, children's homes and
government agencies. Subparagraph (iv) refers to an education
and care service within the meaning of the Education and Care
Services National Law (Victoria). Section 38G of the
Interpretation of Legislation Act 1984 provides that this means
the provisions applying because of section 4 of the Education
and Care Services National Law Act 2010.
Sexual offence is defined to mean an offence under Subdivision
(8A), (8B), (8C), (8D), (8E) or (8EAA) of Division 1 of Part I of
the Crimes Act 1958 or under any corresponding previous
enactment, or an attempt to commit such an offence, or an assault
with intent to commit such an offence. The same definition is
used in new section 327 of the Crimes Act 1958, set out in
clause 4 of the Bill.
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New section 49C(2) provides that 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 an adult 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.
A maximum penalty of 5 years imprisonment applies to this
offence.
New section 49C(3) provides that 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. This reflects the common law
standard of care for serious offences involving criminal
negligence (e.g. see Nydam v The Queen [1977] VR 430).
New section 49C(4) makes it clear that section 49C(2) does not
require proof that a sexual offence has been committed. This is
because the offence applies at the stage that there is a substantial
risk that a sexual offence will be committed against a child,
rather than waiting for a child to actually be harmed.
New section 49C(5) and (6) identify various situations in which
some element or elements of the offence occurred outside of
Victoria, and provide that the offence will still be committed so
long as some other element of the offence occurred in Victoria.
These provisions will mean that national organisations that
exercise care, supervision or authority over children in Victoria
will need to address substantial risks that a child in Victoria will
become the victim of a sexual offence.
Clause 4 inserts new sections 327, 328, 329 and 330 in the Crimes Act
1958.
New section 327 provides for an offence of failure to disclose a
sexual offence committed against a child under the age of
16 years.
New section 327(1) provides the definitions that apply to the
offence.
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Interests is defined to include reputation, legal liability and
financial status. Organisation is defined broadly to include a
body corporate or unincorporated body or association, whether it
is part of a larger organisation or is based in or outside Australia.
Both definitions are relevant to new section 327(4).
Sexual offence is defined to mean an offence under Subdivision
(8A), (8B), (8C), (8D), (8E) or (8EAA) of Division 1 of Part I of
the Crimes Act 1958 or under any corresponding previous
enactment, or an attempt to commit such an offence, or an assault
with intent to commit such an offence. This is the same
definition used in new section 49B (to be inserted by section 3 of
the Crimes Amendment (Grooming) Act 2014) and new
section 49C of the Crimes Act 1958 (to be inserted by clause 3
of this Bill).
New section 327(2) provides that an adult 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 adult, must disclose that information
to the police as soon as it is practicable to do so, unless he or she
has a reasonable excuse for not doing so. A maximum penalty of
3 years imprisonment applies to this offence.
A person will not commit the offence if he or she has heard
rumours or speculation about another person, or has only a small
piece of information that may be relevant, and does not disclose
that information to police. The offence is concerned with people
who have information of sufficient quality that it leads them to
form a reasonable belief that a relevant sexual offence has been
committed, and who fail to disclose that information.
New section 327(3) provides that, for the purposes of
section 327(2), a reasonable excuse includes where--
(a) the person fears on reasonable grounds for the safety of
any person (except the person reasonably believed to
have committed, or to have been involved in, the
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
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(b) the person reasonably believes the information has
already been disclosed to police and he or she has no
further information. As the example indicates, a person
may hold this belief if he or she has disclosed this
information in a mandatory report under the Children,
Youth and Families Act 2005. Clause 6(3) of the Bill
requires the Secretary to the Department of Human
Services to provide information in a mandatory report to
police.
New section 327(4) provides that a reasonable excuse does not
include concern for the perceived interests of the person
reasonably believed to have committed, or been involved in, the
offence, or any organisation. This ensures that the best interests
of the child are not placed behind the interests of an organisation
(e.g. to avoid negative publicity).
New section 327(5) provides an exception to the offence where
the information about the offending came from the victim when
he or she was of or over 16 years and he or she requested that the
information not be disclosed. This will mean that if the victim
provides information directly to another person, or if that other
person provides the information to a third person, the offence will
not be committed by either the second or third person.
However, new section 327(6) provides that the exception in
subsection (5) does not apply if, at the time of providing the
information, the victim had an intellectual disability and did not
have the capacity to make an informed decision about whether or
not the information should be disclosed, and the person to whom
the information was provided was aware or ought reasonably to
have been aware of those facts.
New section 327(7) provides further exceptions to the offence
where (a) the person came into possession of the information
when he or she was a child, (b) the information would be
privileged under Part 3.10 of Chapter 3 of the Evidence Act
2008, (c) the information is a confidential communication under
the Evidence (Miscellaneous Provisions) Act 1958, (d) the
person comes into possession of the information solely through
the public domain or forms the belief solely from information in
the public domain, (e) the person is a member of the police force
acting in the course of his or her duty in respect of the alleged
victim, or (f) the alleged victim turned 16 before the
commencement of section 4 of this amending Act.
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New subsection (7)(b) will mean that information which is
protected by privilege, such as communications between a client
and their lawyer, or a religious confession, may remain
confidential and the information is not required to be disclosed to
police.
New subsection (7)(c) will ensure that, for example, a counsellor
or health professional in whom a victim has confided, is not
required to disclose information to police. This will ensure that
the offence does not operate to discourage victims from
disclosing information where this is a part of a support
mechanism or treatment for the child.
New subsection (7)(d) will ensure that, for example, a person
who forms the required belief just from a media report is not
required to disclose that information to police. However, a
person watching that same report who has separate information
that leads him or her to form the required belief (for example, if
he or she witnessed the suspect do something relevant), does not
fall under the exception. In those circumstances, the person
should disclose that information to police.
New sections 328, 329 and 330 protect the confidentiality
of people who make disclosures under section 327.
These protections are similar to those provided for in
sections 189, 190 and 191 of the Children, Youth and Families
Act 2005 for mandatory reporters.
New section 328 provides that persons who make disclosures to
the police are protected, where relevant, in respect of their
professional conduct and ethics, are not subject to any liability
and that any disclosures made do not contravene certain
confidentiality provisions of the Health Services Act 1988 or the
Mental Health Act 1986.
New section 329 provides a framework for evidence about
disclosures in a legal proceeding. It provides for the giving of
evidence as to the information contained in a disclosure and the
protection of the identification of a person who makes the
disclosure and any particular matter contained in that disclosure.
A court or tribunal may in certain circumstances permit such
information to be disclosed.
New section 330 is a confidentiality provision in relation to the
protection of the identification of a person who makes a
disclosure under section 327. The Bill provides an exemption
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that applies to the making of a disclosure where it is reasonably
required for law enforcement purposes, or in the course of giving
evidence to a court or tribunal under section 329. The maximum
penalty for breaching this confidentiality is imprisonment for
1 year.
Clause 5 provides transitional provisions by inserting new section 622 in
the Crimes Act 1958. New section 49C applies to an offence
alleged to have been committed on or after the commencement
of clause 3, irrespective of when the risk was created.
New section 327 applies to a person if the alleged victim is under
16 years of age on the commencement of clause 4 (irrespective
of when information is received or a reasonable belief is formed)
unless the person has already disclosed the information referred
to in new section 327(2) to police.
The transitional provision means that if, when the offence in
clause 4 commences, an adult already possesses information
which has led them to believe on reasonable grounds that a
sexual offence was committed against a child who is still under
the age of 16 years, the adult must disclose that information to
police as soon as it is practicable to do so. The adult's potential
criminal liability arises if, at a point after the offence in clause 4
has commenced, the adult has not disclosed to police the
information they possess as soon as it is practicable to do so.
The operation of the offence would not extend to any period of
time when the adult possessed the relevant information, which
was prior to the commencement of the offence in clause 4.
The operation of this transitional provision ensures that the duty
to disclose information about sexual offences committed against
children applies quickly, in the interests of children, without
having a retrospective operation.
Clause 6 consequentially amends other Acts.
Subclauses (1) and (2) make consequential amendments to the
Working with Children Act 2005 to provide that a person who
has been convicted or found guilty of an offence against new
section 49C or new section 327, or an equivalent offence under a
law of another jurisdiction, or against whom a charge for such an
offence is pending, is subject to a category 2 application for the
purposes of that Act.
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Subclause (3) amends the Children, Youth and Families Act
2005 to provide that if a report made to the Secretary to the
Department of Human Services under section 183 or 184 of that
Act contains information that must be disclosed under the new
section 327 offence, the Secretary must report the information as
soon as practicable to the police. This process will enable a
person to provide all of the information they possess on the one
occasion, rather than being required to report the same
information to both police and the Department of Human
Services.
Subclause (4) amends Schedule 1 to the Serious Sex Offenders
(Detention and Supervision) Act 2009 to provide that the
offence of grooming in section 49B(2) of the Crimes Act 1958
(to be inserted by section 3 of the Crimes Amendment
(Grooming) Act 2014) be included as a relevant offence.
Clause 7 amends references to police in the Bill by providing that
references to a "member of the police force of Victoria" will be
substituted with "police officer" on commencement of the
Victoria Police Act 2013.
Clause 8 substitutes a reference in the Bill to a provision of the Mental
Health Act 1986 with a reference to the corresponding provision
in the Mental Health Bill 2014 currently before the Parliament.
Clause 9 provides that the Act will be repealed on 1 July 2016. The repeal
of the amending Act will not affect the continuing operation of
the amendments made by it.
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