The Australian Capital Territory has becomes the first jurisdiction to pass laws that when enacted will mandate reporting by all adults of suspected child sexual abuse.
“…a review concluded [of laws were to be based on ones recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse] the laws should be widened to apply to all adults, because of the problems applying them solely to institutions. Those laws were to be based on ones recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, which called for people who suspected child abuse was occurring within their institution but neglected to tell police to be prosecuted. However the review concluded the laws should be widened to apply to all adults, because of the problems applying them solely to institutions” https://www.canberratimes.com.au/national/act/all-adults-must-report-child-sex-abuse-or-face-jail-under-new-laws-20190219-p50ypx.html
While the laws are more wide ranging than any others in other jurisdictions in Australia, they are not as draconian as some adults and parents may fear they sound in terms of the new obligations placed on them.
Most importantly is the standard put on adults to report suspected sexual abuse; being a reasonable belief. But what does this standard actually mean to the average person on the street who does not deal with criminal law?
There are two often used standards in criminal law:
Reasonable suspicion, and,
There is a lot of precedent and discussion in the law about what constitutes a suspicion and a belief so I’ll step through some basic concepts here.
The first term used in both standards is reasonable. For something to be reasonable a normal adult in the same circumstances would likely think the same way. If you were standing outside on zero degrees wearing a t shirt, shorts and no shoes; a reasonable person would come to the conclusion you are cold.
Another often used term is law is reasonable force. If you have ever heard a discussion in media about reasonable force in your own home if an intruder enters without your permission. If they are very slightly built, young, not armed and not making threats – in those circumstances it would probably be unreasonable to use deadly force against them if you had a gun at hand. Alternatively, if they were armed, much larger than you and threatening to kill you; it would be very arguable that in those circumstances if you had a gun at hand it would be reasonable to use deadly force.
The second terms in the new reporting law are suspicion and belief. Think for yourself what it would mean is you had a suspicion that something was occurring, as opposed to a belief that something was occurring?
If you have older teenage children you might be suspicious they were out late because you fell asleep at 10pm and didn’t hear them come in, but you have nothing to base that on. You may have a belief they were out late if you fell asleep and heard noises at 3am, and while you didn’t know it was them you were pretty sure it was because it is now midday and they are still asleep.
The High Court had ruled before that:
Reasonable suspicion is a much lower standard than reasonable belief. The High Court of Australia in George v Rockett 170CLR104 held that the facts which can reasonably ground a suspicion may be quite insufficient to ground a belief.
The fundamental difference between the two standards is having some objective level of fact to base your conclusion on.
What this means for the new ACT laws is you must report a reasonable belief child sexual abuse is occurring or has occurred – meaning if you have some factual basis or evidence to make a report. CasrersEd training discusses the indicators of abuse to be mindful of so I won’t repeat them here; check out our course sample (with links to our free course) here.
Finally, what if you have a suspicion child sexual abuse is occurring; suspicion in this case meaning that uneasy feeling, hunch or thinking something is happening but you really can’t say one way or another. Do these new laws mean you can’t report it? No. If you have a suspicion you can make a report, these new laws just mean that you’re not mandated to.
Please contact CarersEd if you would like to know more or discuss the impact of these new laws on your business