10. Failing to report the abuse of a child

Section 105A of the Criminal Code creates a crime of failing to report the abuse of a child to police. The crime occurs where a person “has information that leads the person to form a reasonable belief that an abuse offence has been committed against another person who was a child at the time of the alleged offence, and fails without reasonable excuse to disclose that information to a police officer as soon as practicable”.

An abuse offence is defined within s105A and consists of sexual and physical assaults, as well as offences of neglect, ill-treatment, stalking or bullying and abduction.

A number of statutory defences are provided for in the section, including where the person is a child themselves at the time they obtain the relevant information, or where the alleged victim has attained the age of 18 years when the person obtained the information and the person has reasonable grounds to believe that the alleged victim does not wish the information to be reported to police.

Section 105A(4) provides a non-exhaustive list of matters that may constitute a reasonable excuse for failing to disclose the information to a police officer, which include:

• If the person fears on reasonable grounds that disclosing the information would endanger the safety of any person (other than the person alleged to have committed the child abuse offence)
• If reporting the information would disclose information in respect of which there is a lawful claim or right of privilege (this does not include information disclosed during a religious confession)
• If the information is generally available to members of the public.

A prosecution under this section can only be commenced with the written authority of the Director of Public Prosecutions. Ordinarily, a charge under this section will only be brought where the person was in a position of authority or control over the alleged victim and/or perpetrator, and failed to report the matter to police. Consideration will be given to the nature of the position of authority the person holds (e.g. whether the person is the parent, guardian or carer, or are in an institutional setting) and any reason the person proffered as to why they did not report the abuse.

In circumstances where a prosecutor become aware of evidence that a person may have committed the offence of failing to report the abuse of a child (either through witness briefings or following a review of the police file), the prosecutor is to seek advice from the Director or Deputy Director. In determining whether to refer the matter to Tasmania Police for investigation, factors that will be considered include:

• the nature of the relationship between the victim and the person
• the nature of the relationship between the person and the accused
• any reason the person proffered as to why they did not report the abuse
• the complainant’s attitude to the matter

If a complainant, during the prosecution process, discloses that a further alleged abuse offence was committed against them when they were a child, the prosecutor is to:

• Consider whether an ex officio charge could be included in the indictment and prepare a memorandum to the Committee. (It will be necessary to obtain a supplemental proof of evidence or request police to obtain a further statutory declaration). In these circumstances, it is not necessary to disclose the information to a police officer unless further investigation is needed.
• If the alleged abuse offence was committed by a person other than the accused, inform a police officer. The complainant should be informed that police will be notified.

If a witness, other than the complainant, discloses to a prosecutor that an abuse offence was committed against them when they were a child, the prosecutor is to inform a police officer. The witness should be informed that police will be notified.