Mandatory reporting laws for child sexual abuse in Australia: A legislative history

Associate Professor Ben Mathews

Faculty of Law
Australian Centre for Health Law Research
Queensland University of Technology

August 2014

ISBN 978-1-925118-58-2

Executive summary

Scope and purpose of this report

History of Australian mandatory reporting legislation for child sexual abuse

The Royal Commission into Institutional Responses to Child Sexual Abuse is required to inquire into, among other things, ‘what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts’.

An aspect of the nature of allegations of child sexual abuse occurring within institutional contexts is that they often relate to events that took place years and sometimes decades before the allegations are brought to light. This report is intended to assist in understanding the development of mandatory reporting laws and to establish a means of determining the existence and scope of mandatory reporting laws in any jurisdiction at a given point in time.

To assist the Royal Commission in addressing our terms of reference, the major focus of this report is to review and explain the legislative principles for mandatory reporting to child welfare agencies of child sexual abuse in each state and territory of Australia, and to trace changes in the development of the laws since their inception to the present day. In doing so, the report identifies differences within and between state and territory laws over a period of 44 years, from 1969 to 2013. The report does not discuss obligations to report criminal conduct to law enforcement agencies in detail (see Part 2.6). It is not the purpose of this report to make recommendations for reform of law, policy or practice. Nevertheless, the outcomes of the legal analyses indicate areas for possible reform, enhancement and research.

The law and historical developments in each state and territory are detailed in Part 3 of this Report. A timeline is also provided for each jurisdiction showing the major developments in graphic form. Nine tables in the Executive summary of this report display the most essential information in summary form.

Precursors to and reasons for the introduction of the laws in each jurisdiction, and for substantial amendments to the laws

A second purpose of this report is to identify why the legislation changed in each jurisdiction. This task involved research into publicly available records in each state and territory, focusing on significant government inquiries and law reform reports, and parliamentary debates.

Findings regarding the precursors to legal developments are integrated within the treatment of the historical legal developments in Part 3 of this report. Discussion of these precursors is presented in shaded boxes. In addition, Table 9 in the Executive summary of this report highlights the major influential factors.

Overseas learnings

A third, minor aspect of the report is to summarise other jurisdictions’ reporting laws and developments over time, to identify issues of interest. For feasibility, this is limited to selected jurisdictions having the most detailed experience of mandatory reporting laws and the most detailed data about child protection. This is presented in Part 4.

Fundamental contextual material

Reasons for the legislative changes need to be understood with reference also to changes in understanding of the broader child protection context. Accordingly, Part 2 of this report provides fundamental contextual material about the nature of mandatory reporting laws, their rationales, genesis and development, their function in the special context of child sexual abuse, and key aspects of their development and position in the Australian legal landscape. Part 2 of the report also briefly notes normative arguments about the laws.

Major findings

The major findings regarding the three key components of the report are as follows.

History of Australian mandatory reporting legislation for child sexual abuse

1. Each state and territory in Australia has now enacted legislation commonly known as ‘mandatory reporting laws’. These laws require designated persons to report suspected cases of child sexual abuse. The laws have the purposes of:
  • identifying cases of child sexual abuse which would otherwise not be revealed

  • preventing continuation of the sexual abuse of the child who is the subject of the report

  • enabling detection of the offender

  • preventing the offender from abusing other children

  • providing medical and other therapeutic assistance to the abused child and her or his family.

Appendix 1 contains a diagram illustrating the role of mandatory reporting within the child welfare, child protection and criminal justice systems.

The current legislative provisions are cited in Table 1 of this Executive summary.

2. Each Australian state and territory has constitutional power to make laws relating to child protection. A unified approach has never been agreed across the nation.

3. Accordingly, the laws have been created in different jurisdictions at different times, and are different in scope and nature.

4. Mandatory reporting laws were first enacted in 1969 in South Australia. The last state to enact its first mandatory reporting law was Western Australia in 2009. This is a period of 40 years.

These first enactments are set out in Table 2 of this Executive summary.

5. Legislative developments have occurred in piecemeal and irregular fashion. Reporting duties have been clarified. New reporter groups have been added, although these have differed and remain inconsistent among jurisdictions. Penalties have been increased, or more rarely, have been removed.

The major changes to the initial enactments, and their commencement dates, are detailed at length in Table 2 of this Executive summary.

A chronological timeline of the initial mandatory reporting enactments in each jurisdiction, their initial focus and scope, and when a reporting duty was expressly stated to apply to child sexual abuse, is set out in Table 3 of this Executive summary.

6. Currently, the laws share many features and have a similar schematic approach. For example, across jurisdictions, the duty is obligatory, rather than discretionary. It must be complied with immediately. The report destination is usually the jurisdiction’s department of child protection. Confidentiality and immunity from legal liability are universal features.

The substance of each jurisdiction’s provision is set out in Table 4 of this Executive summary.

7. However, several significant differences remain between the laws, as follows:

a. Different reporter groups. Possibly the most significant difference is in which persons are required to make reports. Normally, the reporting duty is applied to members of at least four occupations who regularly work with children: police, teachers, doctors and nurses. However, even this general approach is not present in every Australian state and territory.

There are numerous different approaches. At one end of the spectrum, the Northern Territory makes all citizens mandated reporters. Close to this end of the spectrum are New South Wales, South Australia and Tasmania, which mandate a large range of occupations. Closer to the other end of the spectrum is Queensland, which mandates three professions. South Australia is the only jurisdiction to include clergy as mandated reporters, although the duty does not extend to suspicions developed through confession.

A summary of the mandated reporter groups is set out in Table 5 of this Executive summary.

b. Different states of mind activate the reporting duty. There are differences in the state of mind that a reporter must have before the duty is activated. Duties are never so strictly limited that it only applies to cases where the person is certain that the child is being abused or neglected; but nor are they so wide as to apply to cases where a person may have the merest inkling that abuse or neglect may have occurred. While this is a reasonable approach, there are differences between the jurisdictions in how this state of mind is expressed, which may cause confusion for reporters. The legislation variously uses the concept of ‘belief on reasonable grounds’ (four jurisdictions), and ‘suspects on reasonable grounds’ (four jurisdictions). Technically, belief requires a higher level of certainty than suspicion.

These differences in reporters’ states of mind are set out in Table 6 of this Executive summary.

c. Different temporal/situational scope of the reporting duty. There are differences in whether the reporting duty is applied to past or currently occurring abuse only, or also to perceived risk of future abuse. In all jurisdictions the reporting duty applies to suspected past abuse and currently occurring abuse. However, four jurisdictions (New South Wales, Queensland, Victoria, Northern Territory) extend the duty to cases where the reporter has a reasonable suspicion that a child is at risk of being abused in future, no matter who the suspected future perpetrator may be. South Australia and Tasmania require reports of suspicions that a child is likely to be abused in future, but only if the suspected future perpetrator is a person who lives with the child. In contrast, the Australian Capital Territory and Western Australia limit the duty to cases of past or current abuse.
These different approaches are set out in Table 6 of this Executive summary.

d. Different extent of harm activates the reporting duty. Generally, mandatory reporting laws are concerned with acts and omissions that are significantly harmful to the child’s health, safety, wellbeing or development. In several jurisdictions, this approach is applied only to physical abuse, psychological abuse and neglect, and it is made clear that all cases of suspected sexual abuse must be reported without the report needing to consider the presence or extent of harm. However, some states’ legislation applies the general approach to sexual abuse as well. Where this is done, the legislation differs, but generally uses concepts such as ‘significant harm’ or ‘detriment’ to activate the reporting duty. In theory, these provisions beg the question of what constitutes such injuries; for most cases of sexual abuse, this should not be problematic in these jurisdictions but there may still be grey areas (for example, exposure to pornography).

The different concepts and standards are set out in Table 6 of this Executive summary.

e. Different definition of ‘child’ to whom the reporting duty is owed. Initial enactments limited the duty to children of various ages, sometimes as low as those aged under 12. The current general approach across states and territories is to apply the reporting duty to suspected abuse of children under 18. However, two differences can be noted. New South Wales restricts the duty to abuse of children aged under 16, and Victoria restricts the duty to abuse of children under 17.

These different provisions are set out in Table 7 of this Executive summary.

f. Different penalties. Penalties for noncompliance are present in seven of the eight jurisdictions. New South Wales originally provided a penalty, but this was omitted after the Wood Inquiry recommendations and legislation in 2009. The penalties differ substantially across jurisdictions.

The different penalties are set out in Table 8 of this Executive summary.

g. Victoria’s parental protection clause. Victoria is the only jurisdiction which has as part of its mandatory reporting provision a clause which further limits the duty to cases in which the reporter not only has a reasonable belief about the child suffering harm as a result of sexual abuse, but that the reporter must also have a reasonable belief that the child’s parent has not protected the child from suffering harm as a result of the abuse (or that the child does not have a parent who is likely to protect the child from suffering harm as a result of it).

Some further observations about this clause are detailed in Part 3.7.

Precursors to and reasons for the introduction of the laws in each jurisdiction, and for substantial amendments to the laws

8. The first mandatory reporting laws were generally limited to medical practitioners and were developed primarily to respond to child physical abuse and neglect, but were capable of applying to sexual abuse.

9. In time, as the nature, prevalence and effects of child sexual abuse became the subject of greater recognition and understanding, legislative mandatory reporting provisions developed a clearer focus on this type of abuse. As shown in Part 2.4.2, a body of academic literature exploring child sexual abuse began to appear in the 1970s and proliferated in the 1980s. In the USA, the original federal legislation in 1974 expressly included sexual abuse as a form of maltreatment. In Australia, express legislative provisions requiring reports of sexual abuse began to appear in the mid-1980s.

10. In many instances, developments to the laws – whether the initial enactment, or extension of the reporting duty to members of additional groups or professions – occurred after it became apparent that cases of sexual abuse were occurring and were not being reported. A body of evidence developed about the higher rate of case identification in jurisdictions having mandatory reporting. This influenced further legal developments.

11. Numerous government inquiries and reports, law reform commission reports and similar inquiries from 1977 to 2013 have favoured the introduction of mandatory reporting for child sexual abuse, or, where it already operated, extensions to it or modifications to law, policy and practice in an effort to improve its operation.

The major inquiries and reports, their key recommendations about mandatory reporting legislation, and their translation into legislation, are set out in Table 9 of this Executive summary.

12. In the Australian Capital Territory, Victoria and Western Australia, inquiries and reports have recommended the introduction of mandatory reporting for child sexual abuse, at least in some form, and governments either did not introduce it, or took several years to do so. These are also noted in Table 9.

13. In Victoria and Western Australia, a small minority of government reviews conducted before the introduction of mandatory reporting recommended that it not be introduced for child abuse and neglect generally, without detailed consideration of sexual abuse. Nevertheless, in each of these cases, laws were subsequently enacted soon after for the mandatory reporting of child sexual abuse. These are also noted in Table 9.

14. No inquiry or report has recommended the abolition of existing mandatory reporting laws for child sexual abuse.

Overseas learnings

15. Many nations, both developed and developing, have enacted mandatory reporting laws.

16. All jurisdictions within the USA and Canada have mandatory reporting legislation.

17. Some countries are currently in the process of introducing the laws for the first time, including Ireland.

18. Some countries, including the UK and New Zealand, have not enacted mandatory reporting laws.

19. Few countries, including Australia, collect the data required by a coherent and systematic public health approach to child protection. The USA arguably has the most comprehensive approach to data collection and monitoring of reporting systems.

20. Detailed, rigorous research is required into the operation, and differential effects, of the reporting laws in different jurisdictions in Australia, as applied to different reporter groups. This research can provide a more robust evidence base about the different approaches and can also indicate optimal conditions required for better case identification at an early stage, both within and beyond institutions.