Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (72 of 2019)

Schedule 1   Failing to protect children from, or report, child sexual abuse offences

Criminal Code Act 1995

3   Before Division 274 of the Criminal Code

Insert:

Division 273B - Protection of children

Subdivision A - Preliminary

273B.1 Definitions

In this Division:

child sexual abuse offence means:

(a) a Commonwealth child sex offence within the meaning of the Crimes Act 1914; or

(b) a State or Territory registrable child sex offence.

Commonwealth officer means any of the following:

(a) a Minister;

(b) a Parliamentary Secretary;

(c) an individual who holds an appointment under section 67 of the Constitution;

(d) an APS employee;

(e) an individual employed by the Commonwealth otherwise than under the Public Service Act 1999;

(f) a member of the Australian Defence Force;

(g) a member or special member of the Australian Federal Police;

(h) an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

(i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

(ii) the Australian Capital Territory (Self-Government) Act 1988; or

(iii) the Corporations Act 2001; or

(iv) the Northern Territory (Self-Government) Act 1978;

(i) an officer or employee of a Commonwealth authority;

(j) an individual who is:

(i) a contractor or subcontractor of the Commonwealth or a Commonwealth authority; or

(ii) an officer or employee of a contractor or subcontractor of the Commonwealth or a Commonwealth authority; or

(iii) assigned to work for the Commonwealth or a Commonwealth authority under a labour hire arrangement;

(k) an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:

(i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

(ii) the Australian Capital Territory (Self-Government) Act 1988; or

(iii) the Corporations Act 2001; or

(iv) the Northern Territory (Self-Government) Act 1978; or

(v) a provision specified in the regulations;

(l) an individual who exercises powers, or performs functions, conferred on the individual by or under a law in force in Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned).

State or Territory registrable child sex offence means an offence:

(a) that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and

(b) in respect of which:

(i) a person under 18 was a victim or an intended victim; or

(ii) the offending involved child abuse material.

273B.2 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Division.

273B.3 Double jeopardy

If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.

Subdivision B - Offences relating to the protection of children

273B.4 Failing to protect child at risk of child sexual abuse offence

Failing to protect child at risk of child sexual abuse offence

(1) A person (the defendant ) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child ) under the defendant's care, supervision or authority, in the defendant's capacity as a Commonwealth officer; and

(c) the defendant knows there is a substantial risk that a person (the potential offender ) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant, because of the defendant's position as a Commonwealth officer, has the actual or effective responsibility to reduce or remove the risk mentioned in paragraph (c); and

(f) the defendant negligently failsto reduce or remove that risk.

Penalty: Imprisonment for 5 years.

Absolute liability

(2) Absolute liability applies to paragraph (1)(d).

Note: For absolute liability, see section 6.2.

Certain matters not required to be proved

(3) Subsection (1) applies:

(a) whether or not the child can be identified as a specific person; and

(b) whether or not the potential offender can be identified as a specific person; and

(c) whether or not a child sexual abuse offence is or was actually committed in relation to the child.

273B.5 Failing to report child sexual abuse offence

Offence based on reasonable belief

(1) A person (the defendant ) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child ) under the care or supervision of the defendant, in the defendant's capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to believe that a person (the potential offender ):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 3 years.

Offence based on reasonable suspicion

(2) A person (the defendant ) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child ) under the care or supervision of the defendant, in the defendant's capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to suspect that a person (the potential offender ):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 2 years.

Absolute liability

(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).

Note: For absolute liability, see section 6.2.

Defences

(4) Subsection (1) or (2) does not apply if:

(a) the defendant reasonably believes that the information is already known:

(i) to the police force or police service of a State or Territory; or

(ii) to the Australian Federal Police; or

(iii) to a person or body to which disclosure of such information is required by a scheme established under, or for the purposes of, a law of a State or Territory, or of a foreign country (or part of a foreign country); or

(b) the defendant has disclosed the information to a person or body for the purposes of a scheme mentioned in subparagraph (a)(iii); or

(c) the defendant reasonably believes that the disclosure of the information would put at risk the safety of any person, other than the potential offender; or

(d) the information is in the public domain.

Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3).

(5) An individual is not excused from failing to disclose information as mentioned in paragraph (1)(e) or (2)(e) on the ground that disclosing the information might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability.

Note: For the admissibility in evidence of such information if disclosed in the course of protected conduct, and any information obtained as an indirect consequence, see subsections 273B.9(10) and (11).

Certain matters not required to be proved

(6) Subsection (1) or (2) applies:

(a) whether or not the child can be identified as a specific person; and

(b) whether or not any person actually believes or suspects the matter mentioned in paragraph (1)(c) or (2)(c); and

(c) whether or not the potential offender can be identified as a specific person; and

(d) whether or not a child sexual abuse offence is or was actually committed in relation to the child.

Alternative verdict

(7) If, on a trial of a person for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the person is guilty of the offence against that subsection; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against subsection (2);

it may find the person not guilty of the offence against subsection (1) but guilty of the offence against subsection (2).

(8) Subsection (7) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence against subsection (2).

Subdivision C - Rules about conduct of trials

273B.6 Consent to commence proceedings

(1) Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

273B.7 Evidence relating to a person's age

(1) In determining for the purposes of this Division how old a person is or was at a particular time, the trier of fact may have regard to any of the following matters:

(a) the person's appearance;

(b) medical or other scientific opinion;

(c) a document that is or appears to be an official or medical record from a country outside Australia;

(d) a document that is or appears to be a copy of such a record.

(2) Subsection (1) does not make any other kind of evidence inadmissible, and does not affect a prosecutor's duty to do all the prosecutor can to adduce the best possible evidence for determining the question.

(3) If, on a trial by jury for an offence against this Division, regard may be had to a matter because of subsection (1), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

Subdivision D - Relationship with other laws

273B.8 Relationship with State and Territory laws

This Division applies to the exclusion of a law, or a provision of a law, of a State or Territory that has the effect of making a person liable to be prosecuted for an offence against any law for failing to:

(a) reduce or remove a risk of a child being subjected to conduct constituting a child sexual abuse offence; or

(b) disclose to a police force or a police service information relating to whether a person has engaged, or will engage, in conduct constituting a child sexual abuse offence;

to the extent that the law or provision would otherwise apply in relation to conduct in which the person engages in the person's capacity as a Commonwealth officer.

273B.9 Protection from other laws etc. for complying with this Division

Scope

(1) A person engages in protected conduct if the person:

(a) engages in conduct in avoidance, or purported avoidance, of liability for an offence against this Division; and

(b) the conduct is genuine and proportionate for that purpose.

(2) This section does not apply to liability in any civil, criminal or administrative proceedings (including disciplinary proceedings) ( relevant proceedings ) for knowingly making a statement that is false or misleading.

(3) Without limiting subsection (2), this section does not apply to liability for an offence against any of the following provisions:

(a) section 137.1 (false or misleading information);

(b) section 137.2 (false or misleading documents);

(c) section 144.1 (forgery);

(d) section 145.1 (using forged document).

(4) This section does not prevent a person from being liable in any relevant proceedings for conduct of the person that is revealed by a disclosure of information.

Protection against liability for engaging in protected conduct

(5) If a person engages in protected conduct:

(a) the person is not subject to any liability in relevant proceedings for engaging in the protected conduct; and

(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the protected conduct being engaged in; and

(c) the person is not to be considered to have breached any professional ethics in respect of the protected conduct.

(6) Professional ethics includes the following (without limitation):

(a) rules of professional conduct;

(b) rules of professional etiquette;

(c) a code of ethics;

(d) standards of professional conduct.

(7) Without limiting subsection (5):

(a) if the person engages in protected conduct by disclosing information, the person:

(i) has qualified privilege in proceedings for defamation relating to the disclosure; and

(ii) is not liable to an action for defamation at the suit of another person relating to the disclosure; and

(b) a contract to which the person is a party may not be terminated on the basis that the protected conduct constitutes a breach of the contract.

(8) Paragraphs (5)(a) and (7)(a) do not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.

(9) Without limiting paragraphs (5)(b) and (7)(b), if a court is satisfied that:

(a) a person (the employee ) is employed in a particular position under a contract of employment with another person (the employer ); and

(b) the employee engages in protected conduct; and

(c) the employer purports to terminate the contract of employment on the basis of the person engaging in protected conduct being engaged in;

the court may:

(d) order that the employee be reinstated in that position or a position at a comparable level; or

(e) order the employer to pay the employee an amount instead of reinstating the employee, if the court considers it appropriate to make the order.

Admissibility of evidence

(10) If an individual engages in protected conduct by disclosing information, the information is not admissible in evidence against the individual in relation to liability in any relevant proceedings.

(11) To avoid doubt, this section does not affect the admissibility of evidence in any relevant proceedings of any information obtained as an indirect consequence of a disclosure of information that constitutes protected conduct.