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

Major legislative change for doctors, and applying to nurses – broader duties (commencing 31 August 2005)

The Child Safety Legislation Amendment Act (No. 2) 2004 (No. 36)²⁶ amended the Health Act 1937 to extend doctors’ reporting duties and made the provisions much more specific and detailed.²⁷ In a major development, these provisions were also extended to nurses. These provisions imposed a wide reporting duty for all four classical forms of child abuse and neglect, provided the suspected harm reached the necessary threshold of ‘significance’. The duty applied to an awareness or reasonable suspicion that abuse/neglect that had already occurred, and to suspected risk of harm.

The provisions had the following effects:

• 
  Added a new s 76K containing new definitions of ‘child’ (an individual under 18), ‘harm’, ‘professional’ (a doctor or registered nurse) and ‘registered nurse’ (a person registered under the Nursing Act 1992 as a registered nurse)
  
• 
  ‘Harm’ to a child was defined in s 76K as meaning:
  

‘any detrimental effect on the child’s physical, psychological or emotional wellbeing (a) that is of a significant nature; and

2. 
   that has been caused by
   

1. 
   physical, psychological or emotional abuse or neglect; or
   
2. 
   sexual abuse or exploitation’
   

• 
  Section 76KC imposed the reporting duty in the following terms:
  
  • 
    This section applies if—
    
    • 
      a professional becomes aware, or reasonably suspects, during the practice of his or her profession, that a child has been, is being, or is likely to be, harmed; and
      
    • 
      as far as the professional is aware, no other professional has notified the chief executive (child safety) under this section about the harm or likely harm.
      
  • 
    ‘(2) The professional must immediately give notice of the harm or likely harm to the chief executive (child safety)— orally; or by facsimile, email or similar communication.
    
  • 
    (4) To remove any doubt, it is declared that a professional may need to seek further information about harm or likely harm to a child before forming a reasonable suspicion about the matter.
    
• 
  Under s 76KD if the notification was given other than in writing, then it had to be provided in writing within 7 days.
  
• 
  Under s 76KE if the notification required under 76KC or 76KD was not given, a maximum penalty was provided of 50 penalty units ($3750).
  
• 
  Immunity from liability for giving information to a professional was provided by s 76KG.
  
• 
  The Child Protection Act 1999 ss 22 and 186 were expressly provided to be relevant to a professional giving a notice or other information under these provisions, by s 76KB(1).
  

Confidentiality was also provided to notifiers by s 76KH.