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

Victoria’s parental protection clause: unique Australian provision

Further, Victoria is the only jurisdiction which has as part of its mandatory reporting provision a clause further limiting the duty to cases in which not only is the harm/abuse condition met, but the reporter must believe ‘the child's parents have not protected, or are unlikely to protect, the child from harm of that type’. This clause, in the mandatory reporting context, seems redundant as if the harm or abuse has already happened, then clearly the child’s parents did not protect the child from that harm or abuse. Arguably, this element of Victoria’s provision is unsatisfactory. The different conceptual nature of Victoria’s provisions seems to stem from these provision being grounded in situations where a child can be defined as being ‘in need of protection’ – and hence being able to be subject to formal court orders relating to child protection - rather than a true mandatory reporting provision, which is aimed merely at a preliminary identification by designated professionals of cases of abuse/harm, for the related subsequent purpose of government agencies assessing the child’s situation and what, if anything, needs to be done to help the child, and the family, including but not limited to the making of child protection orders. The two types of provisions are therefore conceptually different: the mandatory reporting provision focuses on the identification of the child who has suffered abuse or harm. It differs from the ‘in need of protection’ provision which focuses on the condition required to warrant government agency intervention and hence the justifiable scope of State intervention. The ‘able parent’ assessment for mandated reporters is arguably not appropriate in a mandatory reporting provision. Not only does it possess a different conceptual nature; it is asking more of a mandatory reporter than is reasonably possible (at least in many cases), and is beyond their reasonable capacity, skill and appropriate professional role. In no other jurisdiction is the mandated reporter expected to undertake such an assessment.

It is unlikely that in practice, reporters would be making such assessments at all, or even if they were, to conclude that a seriously physically or sexually abused child had in fact been protected by their parents from harm or would be in future.⁴¹ Accordingly, it is not likely that this qualification would reduce the number of reports. Nevertheless, data analysis may indicate whether this unique qualification appears to affect reporting practice.

Confidentiality was conferred by s 64(4). Immunity was conferred by s 64(3)(a) (professional ethics) and (b) (other liability).

The obligation was imposed on a wide range of professionals, as follows: (note that seven of the 14 subsections were operational at 1 January 2003; three had commenced on 4 November 1993; four commenced on 18 July 1994; seven others had not commenced at 1 January 2003).⁴²

Section 64(1C): Sub-section (1A) [the duty to report] applies to a person referred to in any of the following paragraphs on and from the relevant date—

(a) a registered medical practitioner within the meaning of the Medical Practice Act 1994;

(b) a registered psychologist within the meaning of the Psychologists Registration Act 2000;

(c) a person registered under the Nurses Act 1993;

(d) a person registered as a teacher under Part III of the Education Act 1958 or permitted to teach under that Part (including by virtue of section 44(4) and (5) of that Act);

(da) a person appointed to an office in the teaching service under the Teaching Service Act 1981 or employed under Division 4 of Part II of that Act;

(db) a person employed under section 15B(1)(a)(i) of the Education Act 1958;

(e) the head teacher or principal of a State school within the meaning of the Education

Act 1958 or of a school registered under Part III of that Act;

(f) the proprietor of, or a person with a postsecondary qualification in the care, education

or minding of children who is employed by, a children's service to which the Children's

Services Act 1996 applies or a person nominated under section 16(2)(b)(iii) of that Act;

(g) a person with a post-secondary qualification in youth, social or welfare work who works

in the health, education or community or welfare services field and who is not referred to in paragraph (h);

(h) a person employed under Part 3 of the Public Sector Management and Employment Act 1998 to perform the duties of a youth and child welfare worker;

(i) a member of the police force;

(j) a probation officer;

(k) a youth parole officer;

(l) a member of a prescribed class of persons.

Some of these categories had been proclaimed, and so the following groups (essentially, doctors, nurses, police, teachers and principals) were mandated reporters at 1 January 2003:

These groups had been proclaimed effective 4 November 1993:

1. 
   a registered medical practitioner within the meaning of the Medical Practice Act 1994;
   

(c) a person registered under the Nurses Act 1993;

(i) a member of the police force;

These groups had been proclaimed effective 18 July 1994:

(d) a person registered as a teacher under Part III of the Education Act 1958 or permitted to teach under that Part (including by virtue of section 44(4) and (5) of that Act);

(da) a person appointed to an office in the teaching service under the Teaching Service Act 1981 or employed under Division 4 of Part II of that Act;⁴³

(db) a person employed under section 15B(1)(a)(i) of the Education Act 1958;⁴⁴

(e) the head teacher or principal of a State school within the meaning of the Education Act 1958 or of a school registered under Part III of that Act;

However, several of these categories had not been proclaimed and so the following groups were not mandated reporters at 1 January 2003:

(b) a registered psychologist within the meaning of the Psychologists Registration Act 2000;

(j) a probation officer;

(f) the proprietor of, or a person with a postsecondary qualification in the care, education

or minding of children who is employed by, a children's service to which the Children's

Services Act 1996 applies or a person nominated under section 16(2)(b)(iii) of that Act;

(g) a person with a post-secondary qualification in youth, social or welfare work who works in the health, education or community or welfare services field and who is not referred to in paragraph (h);

(h) a person employed under Part 3 of the Public Sector Management and Employment Act 1998 to perform the duties of a youth and child welfare worker;

(k) a youth parole officer.

1.5.7.2. Key changes, 2013-12: Victoria