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

Small change to penalty (commencing 1 July 2012)

In addition (see Table 6), since 1 July 2012, the penalty has been moderately raised through the combined operation of the Sentencing Act 1991 (Vic), s 110 and the Monetary Units Act 2004 s 11(1)(b). The value of a penalty unit for the 2012/13 financial year was $140.84. So, the maximum penalty since 1 July 2012 has been $1408. However, it is doubtful whether this increase (if reporters are even aware of it) has influenced reporting behaviour.

1.5.7.3. Current position: Victoria

There has been no substantial change to reporter groups apart from adding midwives to the existing doctors, nurses, police, teachers and principals, or expansion of the types of abuse and neglect which must be reported (still limited to physical injury and sexual abuse).

1.5.7.4. A note on the scope of s 162(1)(c) in Victoria

An issue arises as to whether the mandatory reporting duty in subsection (c) applies only to physical injury caused by physical abuse, or also to physical ‘injury’ caused by neglect.

This is a complex question to which there may not be a clear and indisputable answer. The provisions are somewhat ambiguous, and key terms (including, most critically, ‘physical injury’, but also ‘physical development’, ‘health’ and ‘basic care’) are not defined by the Act or by case law. Some contrasting insights are indicated here. It is ultimately a question of statutory interpretation whether the ‘physical injury’ reporting requirement in (c) applies to any cases of child neglect, and if so, to which cases.

To contextualise the discussion, the subsections regarding physical injury and neglectful circumstances respectively read as follows (in the original 1989 Act s 63(c) and (f), which are unchanged in the 2005 Act s 162(1)(c) and (f)):

‘A child is in need of protection if any of the following grounds exist - …

(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(f) the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.’

(author’s emphasis).