Child sexual offences – failing to take steps to stop offending by others

In recent years a great deal of attention has been focused on the role of organisations in preventing or enabling child sexual abuse. In particular, the Royal Commission into Institutional Responses to Child Sexual Abuse examined the manner in which institutions such as churches and schools had historically responded to offending of this nature within their organisations.

The Royal Commission made a wide range of recommendations, many of which have since been adopted throughout Australia. In Queensland, one of the key recommendations of the Royal Commission that was adopted involved the creation of ‘Third party’ offences where people can be held criminally liable if they fail to take steps to stop child sexual abuse being committed by others in certain circumstances.

Third Party Offences

Sections 229BB and 229BC of the Criminal Code create criminal offences for people who have relevant knowledge regarding sexual offences being committed against children and fail to take steps to stop the offending in certain circumstances, or fail to report the information to the police.

Section 229BB – Failure to protect child from child sexual offence

Section 229BB applies to an adult associated with an institution (referred to as an “accountable person”) who knows there is a significant risk that another adult associated with the institution will commit a child sexual offence in relation to either a child under 16, or a child under 18 with an impairment of the mind.

This section creates an offence for a person in the above position who fails to remove or reduce the risk posed, in circumstances where they have the power or responsibility to do so.

The offence under section 229BB is aimed at people in positions of management or authority who gain knowledge that a risk exists and fail to take appropriate steps to deal with the risk, for instance by removing the other person from the organisation or stopping their involvement with children.

It is clear from subsection (2) that the provision is particularly targeted at religious organisations.  It states that it does not matter that the information was gained by the person through a religious confession.

Section 229BC – Failure to report belief of child sexual offence committed in relation to child

Section 229BC applies to an adult who gains information that causes them to believe, on reasonable grounds (or ought reasonably to cause them to believe) that a child sexual offence is being, or has been committed against a child by another adult.

The section creates an offence for a person in this position who fails, without reasonable excuse, to report the information to the police as soon as reasonably practicable.

There are some key differences between the conduct captured under section 229BC and that targeted under 229BB. Firstly, section 229BC does not require the adult to be associated with an institution in order for the section to apply. This means that any adult who becomes aware of the sort of information referred to in the section could be criminally liable for not reporting this information to police.

Secondly, the wording of the section refers to a child sexual offence that is being, or has been, committed. This extends the relevant information to include information about past offences as well as ongoing offending. This gives the section a much broader scope than 229BB, which only considers situations where there is a risk of future offending.

Thirdly, 229BC contains a built in defence whereby a person will not be criminally liable for not reporting the information to police if they had a reasonable excuse not to do so. Subsection (4) lists a number of circumstances in which a person will be deemed to have a reasonable excuse.  However this is not an exhaustive list, meaning that the courts may find that a person had a reasonable excuse not to report the information to police in other circumstances.

Could both sections apply to the same circumstances?

While at this stage there are no published decisions confirming how these provisions will be interpreted by the courts, it is possible to envisage a situation where the two sections could overlap.

An adult associated with an institution may gain information which causes them to believe on reasonable grounds that a child sexual offence is being committed by another person associated with the institution, giving rise to liability under section 229BC if they do not report this information to police.

If the person is also in a management or supervisory position, such that they have the power or responsibility to remove the risk, they may also incur liability under section 229BB if they fail to do so.

Sections 229BB and 229BC impose obligations on adults who become aware of information relating to child sexual offending to take steps to stop the offending occurring, and assign criminal liability to those who fail to do so. For people associated with an organisation involving children, particularly people in a management or supervisory position, this risk is further increased.

If you have any concerns about liability that may apply to you or others within your organisation under these sections, you should contact us to seek further legal advice immediately.