Legal: Mandatory reporting - if in doubt, report
Queensland Teachers' Journal, Vol 125 No 8, 6 November 2020, page no. 23
There are a number of sources for the obligation to report known, suspected or likely harm to students (whether at school or elsewhere). Different sources differ in how they define “harm”, who to report to, and precisely what is to be reported.
Reporting is vital. As a nation, Australia has invested in developing systems, training personnel and conducting, and responding to, Royal Commissions. In relation to sexual abuse for example, there are highly trained specialist police officers throughout the state, but they cannot investigate, or protect children, if they are not told.
Many cases and inquiries have demonstrated how important prompt reporting of knowledge or suspicion is to protecting children.
The purpose of this article is to emphasise “If in doubt, report" and "If you are asking whether you should, report”.
For Education Queensland employees, the starting point is the “Student Protection Procedure” Version 9.6, Implementation Date 2 March 2020, and documents referred to in it. The department greatly assisted employees a few years ago by introducing the OneSchool Student Protection Reporting module. This assists compliance with obligations imposed by statute and obligations imposed by employer direction.
We will now refer to one source of such an obligation, Part 10 of the Education (General Provisions) Act 2006, which is headed “Reporting of sexual abuse”. We use this as it relates to sexual abuse, contains provision for prosecution for non-compliance, and is in our experience the provision which leads to more allegations of non-compliance than any other.
Section 364 defines “sexual abuse” as: “sexual abuse, in relation to a relevant person, includes sexual behaviour involving the relevant person and another person in the following circumstances:
(a) the other person bribes, coerces, exploits, threatens or is violent toward the relevant person
(b) the relevant person has less power than the other person
(c) there is a significant disparity between the relevant person and the other person in intellectual capacity or maturity”.
Section 365 reads (in part):
“Obligation to report sexual abuse of person under 18 years at state school
- (1) Subsection (2) applies if a staff member of a state school (the first person) becomes aware, or reasonably suspects, in the course of the staff member’s employment at the school, that any of the following has been sexually abused by another person:
- (a) a student under 18 years attending the school
- (b) a kindergarten age child registered in:
- (i) a kindergarten learning program at the school
- (ii) a distance education kindergarten learning program at the school
- (c) a person with a disability who:
- (i) under section 420(2), is being provided with special education at the school
- (ii) is not enrolled in the preparatory year at the school.
- (2) The first person must give a written report about the abuse, or suspected abuse, to the school’s principal or the principal’s supervisor:
- (a) immediately; and
- (b) if a regulation is in force under subsection (3), as provided under the regulation.
- Maximum penalty - 20 penalty units.
Section 365A applies where it is “likely” that sexual abuse will occur.
These provisions, necessarily, use general terms, the meaning of which can be unclear. Accordingly, if you think they may apply, report.
Some examples we have experienced include:
- consensual activity may be sexual abuse (especially where one party is under 16)
- if two students are involved, report (and let others make the judgments)
- it is irrelevant that a student or their parents do not wish the report to be made
- it is irrelevant that you know or suspect someone else has reported
- if you are asking whether you are “aware” or “reasonably suspect”, report
- if you are asking whether it is “sexual abuse”, report
- a senior EQ officer, in a disciplinary context, has found the obligation applies even when the known or suspected abuse occurred years before the student was at the school, but became known/suspected when the student was at the school (we respectfully disagree, but in the present context, that is not the point).
After the event, we will, of course, faithfully represent our clients by examining whether the obligation arose. Before the event, however, our advice is:
If you are thinking it, report it!