Child Abuse and Neglect: a socio-legal Study of Mandatory Reporting in Australia

Current position for doctors and nurses under the Public Health Act 2005

There have been no further changes since 2005, apart from the value of the penalty due to change in the definition of ‘penalty unit’ (see Table 6).

In sum, the changes to the Public Health Act can be expected to have had a major impact on reporting of all forms of abuse and neglect by doctors and nurses since 31 August 2005.

Current position for teachers

Under the current law, the key provisions are in Chapter 12 Part 10 (ss 364-366B). Section 364 defines relevant terms, including ‘employee’ and ‘sexual abuse’. Unlike the other Queensland legislation (PHA), and in contrast to all other Australian jurisdictions except WA, ‘sexual abuse’ is defined in s 364 in extensive conceptual terms which do not include plain explanations of the kinds of acts included – namely:

‘sexual abuse’ includes sexual behaviour involving the relevant person and another person in the following circumstances—

1. 
   the other person bribes, coerces, exploits, threatens or is violent toward the relevant person;
   
2. 
   the relevant person has less power than the other person;
   
3. 
   there is a significant disparity between the relevant person and the other person in intellectual capacity or maturity.
   

Sections 365 and 366 set out the duty to report sexual abuse for staff members of State and non-State schools respectively. This duty applies to suspected cases of sexual abuse that have already occurred, or which are occurring. Sections 365A and 366A set out the duty for staff members of State and non-State schools respectively to report suspected likely sexual abuse. This duty applies to suspected cases of sexual abuse that have not yet occurred, but which are thought likely to occur (an example is where the suspicion arises by observing the child being groomed for abuse).

In the case of ss 365 and 366, the state of mind which activates the duty to report exists when the staff member ‘becomes aware, or reasonably suspects, in the course of the staff member’s employment at the school’. In the case of ss 365A and 366A, the state of mind which activates the duty to report exists when the staff member ‘reasonably suspects, in the course of the staff member’s employment at the school’. The report must be written, and provided immediately (365(2); 365A(2); 366(2); 366A(2)). For suspected cases of past and present abuse, a penalty for noncompliance exists of 20 penalty units ($2200).³³ However, no penalty is attached to the obligation to report suspected likely abuse.³⁴

Immunity from civil, criminal and administrative proceedings in relation to a report made in good faith is conferred (ss 365(6) and (7), 365A(8) and (9), 366(5) and (6), and 366A(7) and (8)). Confidentiality of the reporter’s identity is not expressly conferred by EGPA; arguably, it also is not conferred by the Child Protection Act 1999 (Qld) s 186, which applies to those who make reports directly to police, the CEO of the Department administering the CPA, or an authorized officer.³⁵