Sexual offence

A sexual offence is an offence of a sexual nature under a law of NSW, another state/territory, or the Commonwealth committed against, with or in the presence of a child, such as:

• sexual touching of a child;
• a child grooming offence;
• production, dissemination or possession of child abuse material.

An alleged sexual offence does not have to be the subject of criminal investigation or charges for it to be categorised as a reportable allegation of a sexual offence.

Sexual misconduct

The Act defines sexual misconduct to mean any conduct with, towards or in the presence of a child that is sexual in nature (but is not a sexual offence) and provides the following (non-exhaustive) examples:

• descriptions of sexual acts without a legitimate reason to provide the descriptions;
• sexual comments, conversations or communications;
• comments to a child that express a desire to act in a sexual manner towards the child, or another child.

Crossing professional boundaries comes within the scope of the scheme to the extent that the alleged conduct meets the definition of sexual misconduct. That is, conduct with, towards or in the presence of a child that is sexual in nature (but is not a sexual offence).

The Act defines ill treatment as conduct towards a child that is:

• unreasonable; and
• seriously inappropriate, improper, inhumane or cruel.

Ill-treatment can include a range of conduct such as making excessive or degrading demands of a child; a pattern of hostile or degrading comments or behaviour towards a child; and using inappropriate forms of behaviour management towards a child.

The Children’s Guardian Act defines neglect to mean a significant failure – by a person with parental responsibility for the child, or an authorised carer or an employee if the child is in the employee’s care – to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for the child that causes or is likely to cause harm to the child.

Neglect can be an ongoing situation of repeated failure by a caregiver to meet a child’s physical or psychological needs, or a single significant incident where a caregiver fails to fulfil a duty or obligation, resulting in actual harm to a child or where the failure is likely to cause harm.  Examples of neglect include failing to protect a child from abuse and exposing a child to a harmful environment.

Assault

Technically, any form of unwarranted touching can, depending on the context in which it occurs, constitute an assault. However the Act explicitly exempts from notification assaults that are, in all the circumstances, trivial or negligible – as long as they are investigated under workplace procedures.

Generally, physical force that does not result in more than transient injury and which had no potential to result in serious injury – with consideration to the context and circumstances in which the alleged assault took place – would be considered ‘trivial or negligible’.

Under the Act, an assault can occur when a person intentionally or recklessly (ie. knows the assault is possible but ignores the risk):

• applies physical force against a child without lawful justification or excuse – such as hitting, striking, kicking, punching or dragging a child (actual physical force); or
• causes a child to apprehend the immediate and unlawful use of physical force against them– such as threatening to physically harm a child through words and/or gestures and regardless of whether the person actually intends to apply any force (apprehension of physical force).

Allegations of ‘serious physical assault’, if proven, must be reported to the OCG for the purpose of the Working With Children Check. Therefore, it is important to obtain the information necessary to determine whether the alleged assault, if proven, will constitute a serious physical assault.

What is serious physical assault?

A physical assault is not serious where:

• it only involves minor force; and
• it did not, and was not ever likely to, result in serious injury.

A physical assault is serious where:

• it results in the child being injured, beyond a type of injury like a minor scratch, bruise or graze; or
• it had the potential to result in a serious injury; or
• the injury suffered may be minor, but the assault is associated with aggravating circumstances (in this regard, aggravating circumstances might include associated inhumane or demeaning behaviour by the employee, for example kicking a child, pulling a child by grabbing the child around the neck).

Section 43B Failure to Reduce or Remove the Risk of Child Abuse

This section creates an obligation to remove/reduce risks of child abuse occurring. It is now a criminal offence to negligently fail to reduce or remove a risk if a person has the power or responsibility to do so.  Previous obligations only required the person to report the risk or relevant information, none of the obligations require such persons to take any action to reduce or remove that risk.  The person must know there is a serious risk of a child abuse offence taking place power or responsibility to do so against a child who is or may come to be under the care or supervision of the organisation.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were an adult working in an organisation engaged in child-related work
2. There was a serious risk that an adult worker in that organisation would commit a child abuse offence
3. You were aware of that risk
4. You had the power or responsibility to reduce or remove that risk, and
5. You negligently failed to reduce or remove that risk.

A ‘child abuse offence’ includes:

• Murder, intent to murder and manslaughter
• Choking, suffocation and strangulation
• Wounding and assaults causing harm
• Poisoning and drink spiking
• Sexual offences including sexual assault, sexual touching and sexual act
• Child abuse material, and
• Attempting to commit any of the above

‘Child related work’ as defined in the Child Protection (Working with Children) Act 2012 and Regulation 2013.

Section 316A Concealing Child Abuse Offence

This section creates an offence if an individual (whether they perform child related work or not) fails to report a child abuse offence.  If an adult knows (or reasonably ought to know) that a child abuse offence has been committed and that they have information that might be of material assistance in apprehending/prosecuting/convicting the offender, they must bring that information to the attention of Police.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were an adult
2. You knew, believed or ought reasonably have known that a child abuse offence had been committed
3. You knew, believed or ought reasonably have known that you had information which might be of material assistance to arrest, prosecute or convict the offender
4. You failed to bring the information to the attention of a NSW police officer as soon as practicable after you obtained it, and
5. You had no reasonable excuse for your failure.

The definition of ‘child abuse offence’ covers a wide range of crimes against persons under 18, including:

• Serious assaults
• Sexual offences such as sexual assault, sexual touching, sexual act, grooming, procuring, child abuse material and child prostitution, and
• Failing in parental responsibilities to care for a child, as well as abandoning or exposing a child.

Behaviour that causes significant psychological or emotional harm is conduct that is intentional or reckless (without reasonable excuse), obviously or very clearly unreasonable and which results in significant emotional harm or trauma to a child.

For a reportable allegation involving psychological harm, the following elements must be present:

• an obviously or very clearly unreasonable or serious act or series of acts that the employee knew or ought to have known was unacceptable, and
• evidence of psychological harm to the child that is more than transient, including displaying patterns of ‘out of character behaviour’, regression in behaviour, distress, anxiety, physical symptoms or self-harm, and
• an alleged causal link between the employee’s conduct and the significant emotional or psychological harm to the child.