Div 11BInstitutional and out of home care child sexual abuse

Division 11B—Institutional and out of home care child sexual abuse 64—Interpretation adult means a person who is not a child; child means a person under 18 years of age; institution means— (a) an entity (whether private or public) that operates facilities or provides services to children who are in the care, or under the supervision or control, of the institution and includes (without limitation) medical and religious institutions and any services or functions provided by persons as part of the duties of a medical practitioner or of a religious or spiritual vocation; or (b) an entity of a class prescribed by the regulations; out of home care means— (a) care provided to a child where— (i) the child is under the guardianship or custody of the Chief Executive under the Children and Young People (Safety) Act 2017; and (ii) the care is provided by a person with whom the child is placed pursuant to section 84 of that Act; and (iii) the care is provided on a residential basis in premises other than the child's home; and (iv) the provider of the care receives, or may receive, payment, or financial or other assistance, in relation to the care provided; or (b) any other care of a kind declared by the regulations to be included in the ambit of this definition; prescribed person means an adult who— (a) is an employee of an institution, including a person who— (i) is a self‑employed person who constitutes, or who carries out work for, an institution; or (ii) carries out work for an institution under a contract for services; or (iii) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or (iv) undertakes practical training with an institution as part of an educational or vocational course; or (v) carries out work as a volunteer for an institution; or (vi) is of a class prescribed by the regulations; or (b) provides out of home care; sexual abuse of a child includes any unlawful conduct of a sexual nature committed to, or in relation to, a child. 64A—Failure to report suspected child sexual abuse (1) A prescribed person is guilty of an offence if the person knows, suspects or should have suspected that another person (the abuser)— (a) has previously engaged in the sexual abuse of a child while an employee of the institution or, if the prescribed person provides out of home care, while also providing out of home care, and— (i) the child is still under the age of 18 years; or (ii) the abuser is still an employee of the institution or another institution or still provides out of home care; or (iii) the sexual abuse occurred during the preceding 10 year period; or (b) is an employee of the institution or, if the prescribed person provides out of home care, is providing out of home care, and is engaging, or is likely to engage, in the sexual abuse of a child, and the prescribed person refuses or fails to report that to the police. (2) For the purposes of subsection (1), a defendant should have suspected that another person has engaged, is engaging or is likely to engage in sexual abuse of a child if a reasonable person in the defendant's circumstances would have held the relevant suspicion and the defendant's failure to hold that suspicion, if judged by the standard appropriate to a reasonable person in the defendant's position, amounts to criminal negligence. (3) A prescribed person may be guilty of an offence under this section in respect of any knowledge, suspicion, or circumstances in which they should have held a suspicion, occurring before the commencement of this section, but in such a case the person will not be guilty of the offence unless— (a) the relevant child is still under the age of 18 years and is still in the care, or under the supervision or control, of the institution or is still in out of home care; or (b) the abuser is still an employee of the institution or another institution or still provides out of home care. (4) It is a defence to a charge of an offence under this section if the defendant had a reasonable excuse for the refusal or failure to report. (5) Without limiting the circumstances in which a person might be found to have had a reasonable excuse for a refusal or failure to report, a person will be taken to have had a reasonable excuse if the person refused or failed to report the matter to the police because the person believed on reasonable grounds that the matter had already been reported to the police or had been reported under Chapter 5 Part 1 of the Children and Young People (Safety) Act 2017. (6) If a prescribed person reports a matter to the police, in good faith, believing that the report was required under this section— (a) no civil or criminal liability lies against the person for making the report; and (b) the person cannot be held to have breached any code of professional etiquette or ethics, or to have departed from any acceptable form of professional conduct, for making the report. (7) Sections 163 (other than section 163(1)(ab)) and 165 of the Children and Young People (Safety) Act 2017 apply in relation to a prescribed person who reports a matter to the police under this section as if they had provided the information under Chapter 5 Part 1 of that Act. 65—Failure to protect child from sexual abuse (1) A prescribed person is guilty of an offence if— (a) the prescribed person knows that there is a substantial risk that another person (the abuser) who is also an employee of the institution or, if the prescribed person provides out of home care, who is also a provider of out of home care, will engage in the sexual abuse of a child— (i) who is under 17 years of age; or (ii) in relation to whom the abuser is in a position of authority; and (b) the prescribed person has the power or responsibility to reduce or remove that risk but negligently fails to do so. (2) For the avoidance of doubt, it is not necessary for the prosecution to prove that sexual abuse of a child occurred to make out an offence against this section. (3) For the purposes of this section, a person is in a position of authority in relation to a person under the age of 18 years (the child) if— (b) the person is a parent, step‑parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step‑parent, guardian or foster parent of the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (i) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).