New child abuse related offences - failure to report and failure to protect

From 31 August 2018, amendments to the Crimes Act 1900 commenced to introduce new offences of concealing a child abuse offence (section 316A) and failing to remove the risk that a worker will commit a child abuse offence (section 43B). The new offences are part of a suite of reforms to strengthen child sexual abuse laws in NSW, based on the Royal Commission’s Criminal Justice Report.

New offence of concealing a child abuse offence (failure to report)

All adults in NSW are required to report information to Police if they:

• know, believe or reasonably ought to know that a child (under 18 years) has been abused, or
• know, believe, or reasonably ought to know that they have information that might materially assist in securing the apprehension, prosecution or conviction of the offender.

This offence covers sexual abuse, serious physical abuse and extreme neglect of a child (under 18 years). It has a maximum penalty of imprisonment for two years.

A person will not be guilty of the offence, however, if they have a reasonable excuse for not reporting the information to Police. This is similar to the existing requirement to inform Police of a serious indictable offence (section 316 of the Crimes Act 1900). Reasonable excuses for not reporting information to Police include knowing or reasonably believing that:

• the information has already been reported under mandatory reporting obligations, such as to the Child Protection Helpline, NSW Health Child Wellbeing Unit or to the Ombudsman under the Reportable Conduct Scheme, or the person believes on reasonable grounds that another person has reported it
• the information is already known to Police
• the alleged victim is an adult at the time of providing the information and doesn’t want it reported to the Police, or
• there are grounds to fear for their safety or another person’s safety if they report to Police.

In addition, the person has a reasonable excuse for failing to notify the Police if they were under 18 years of age when they obtained the information.

New offence of failing to remove the risk that a worker will commit a child abuse offence

An adult working in an organisation that engages workers in child-related work commits an offence if:

• they know that an adult worker engaged by the organisation in child related work poses a serious risk of abusing a child (under 18 years), and
• they have the power or responsibility to reduce or remove the risk, and
• they negligently fail to reduce or remove that risk.

The offence covers failures to protect against sexual or serious physical abuse and is punishable by up to two years imprisonment.

What do these changes mean for NSW Health workers?

These changes are expected to have minimal impact on current obligations for NSW Health workers.

As a NSW Health worker you are already required to report child abuse to relevant authorities – this is set out in Child Wellbeing and Child Protection Policies and Procedures for NSW Health.

When deciding whether to report to the Child Protection Helpline or NSW Police, you are encouraged to discuss any questions or concerns with your supervisor and/or the NSW Health Child Wellbeing Unit as needed.

Completing the mandatory Child Wellbeing and Child Protection HETI online training will give you the best preparation for responding to vulnerable children, young people and their families and understanding your reporting requirements.

What if the alleged child abuse involves a NSW Health worker?

Under the NSW Health Code of Conduct, you are required to report to the designated person within your organisation if you become aware of an allegation, charge or conviction involving an under 18 year old against another NSW Health worker.

Any allegations of abuse of children under 18 years involving a NSW Health worker is then required to be managed under Child Related Allegations, Charges and Convictions Against Employees. This policy directive sets out the mandatory requirements for notifying the Police and for identifying and addressing risk.

Further information

NSW Health’s response to the Royal Commission