Failure to Protect Offence

It is well known that schools and school leaders owe a positive duty of care to students to ensure that the school environment is safe for them. However, Principals should be on notice that a failure to safeguard  students against sexual offences within the school can invoke criminal liability and potentially lead to imprisonment.

In response to the Betrayal of Trust report the Victorian Government strengthened laws to protect children from sexual abuse and exposure to sexual offenders. To that end, a criminal offence for failing to protect a child under the age of 16 from a risk of sexual abuse was enacted and commenced on 1 July 2015.

This law seeks to ensure that organisations are being proactive in protecting children within their organisation from incidence of sexual offences.

Section 49O Crimes Act 1958 

The ‘Failure to Protect’ offence is set out in Section 49O of the Crimes Act 1958. This provision makes it a criminal offence for a ‘person of authority’ in an organisation to fail to protect a child from being the victim of a sexual offence.

A person will violate this section and expose themselves to criminal liability where they negligently fail to remove a risk of a sexual offence from a child, and

  • they occupy a position within the relevant organisation; and
  • there is a substantial risk that a child (aged under 16) will become the victim of a sexual offence committed by a person associated with the organisation; and
  • they know that the risk exists; and
  • by reason of their position, they have the power or responsibility to reduce or remove the risk to the child.

The maximum penalty for this offence is 5 years imprisonment.

What is a relevant organisation?

A relevant organisation is one which is required or permitted to engage in activities associated with the care, supervision, or authority over children. This includes schools, religious bodies, sporting organisations and childcare services.

Who is a ‘person associated with the organisation’?

All employees, volunteers, contractors and agents over the age of 18 years would be ‘persons associated with the organisation’. There may also be circumstances where persons do not fit within these identified categories but are still considered to be ‘persons associated with the organisation; so care must be taken to ensure that the protections a school has in place extends to all persons  with whom a school maintains a relationship.

People who merely receive services from the organisation are not included.

What is a substantial risk?

To be in violation of this provision, a substantial risk of a child becoming the victim of a sexual offence must be identified. A substantial risk is considered based on a number of factors including;

  • The likelihood of the sexual offence being committed;
  • The nature of the relationship between the child and the person who may commit an offence;
  • The background of the person who may commit an offence;
  • Any vulnerabilities of the child; and
  • Any other relevant factors.
Substantial risk is not defined within the legislation, so consideration must be had to the totality of the circumstances.

To ‘know of the risk’ the person must reasonably know that a risk exists to any child. A person is generally taken to know that there is a risk if he or she is aware that it exists or will exist in the ordinary course of events. A mere suspicion maintained by a person of authority does not amount to them ‘knowing’ that there was a substantial risk to the child. However, a person of authority is expected to follow up on a suspicion of a sexual offence occurring.

Avoiding Section 49O
For the purposes of the ‘Failure to Protect’ offence, the standard of care owed by the person in a position of authority to children is that of a ‘reasonable person’. This means that to be in violation of this offence, one must have exercised a great falling short of the standard of care that a reasonable person in the circumstances would be expected to exercise in order to remove or reduce the risk to a child.
It is vital that organisational leaders take proactive steps to educate employees on identifying risks to children, as well as actively preventing these risks through education, policy and monitoring of employee behaviour.
Failure to disclose sexual offence committed against child

The ‘Failure to Protect’ offence is to be considered in addition to the existing legislation mandating the disclosing of sexual offences committed against children.

Section 327 of the Crimes Act 1958 mandates that any person aged 18 years or over disclose to a police officer any information they have that leads them to believe that a sexual offence has been committed against a child aged under 16. They must disclose this information as soon as it is practicable to do so unless the person has a reasonable excuse for not doing so. This may occur if a person believes on reasonable grounds that disclosing this information would put the safety of another person at risk (excluding the alleged offender), or they reasonably believe that the information has already been disclosed to police.

How can Brennan Law Partners assist?

Given the significance of this issue and the potential consequences for falling short of what is required, Brennan Law Partners can assist you with developing and implementing the policies and practices that go to discharging your obligations surrounding the ‘Failure to Protect’ offence. Remember, being proactive on this issue is required, not just recommended. Brennan Law Partners also provides staff training to support all staff understand their obligations and role in protecting students. Contact us to review your policies and procedures to ensure they are effective and up to date or to book in a training seminar.

Please also let us know immediately if you are concerned about this issue in your school or are hesitant about appropriate steps to take in a given situation. If you have a situation that is currently of concern, you must act immediately. We encourage you to contact us to discuss the particular circumstances in more detail so as to obtain tailored legal advice.

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.

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