Australia
Children Western and Community Services Amendment
(Reporting Sexual Abuse of Children) Bill 2007
CONTENTS
1. Short title 2
2. Commencement 2
3. The Act amended 2
4. Section 23 amended 2
5. Division 9A inserted in Part 4 2
Division 9A -- Reporting sexual abuse of children
124A. Terms used in this Division 2
124B. Matters concerning sexual abuse of
children to be reported by certain persons 5
124C. Reports: form and content 6
124D. Reports: who receives copies 7
124E. When a prosecution can be commenced 8
124F. Confidentiality of reporter's identity 8
124G. Evidence and legal proceedings 10
124H. Orders, leave of courts etc. 12
6. Section 129 amended 13
7. Section 142 amended 14
8. Section 238 amended 15
9. Section 240 amended 15
10. Section 241 amended 18
11. Section 249 amended 18
12. Evidence Act 1906 amended 19
13. Freedom of Information Act 1992 amended 19
257--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Children and Community Services Amendment
(Reporting Sexual Abuse of Children) Bill 2007
A Bill for
An Act to amend the Children and Community Services Act 2004 and
as a consequence to amend the Evidence Act 1906 and the Freedom of
Information Act 1992.
The Parliament of Western Australia enacts as follows:
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 1
1. Short title
This is the Children and Community Services Amendment
(Reporting Sexual Abuse of Children) Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
being a day that is later than 31 December 2008.
10 3. The Act amended
The amendments in this Act, except those in sections 12 and 13,
are to the Children and Community Services Act 2004.
4. Section 23 amended
Section 23(5) is amended as follows:
15 (a) in paragraph (c) by inserting after "standards" --
"
or any principles of conduct applicable to the
person's employment
";
20 (b) by inserting "and" at the end of paragraph (a).
5. Division 9A inserted in Part 4
After section 124 the following Division is inserted --
"
Division 9A -- Reporting sexual abuse of children
25 124A. Terms used in this Division
In this Division --
"commencement day" means the day on which the
Children and Community Services Amendment
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(Reporting Sexual Abuse of Children) Act 2007
section 5 comes into operation;
"doctor" means a natural person who is registered as a
medical practitioner under the Medical
5 Practitioners Act 2006;
"identifying information", in relation to a reporter,
means information --
(a) that identifies the reporter; or
(b) that is likely to lead to the identification of
10 the reporter; or
(c) from which the identity of the reporter could
be deduced;
"midwife" has the meaning given in the Nurses and
Midwives Act 2006 section 3;
15 "nurse" has the meaning given in the Nurses and
Midwives Act 2006 section 3;
"report" means a report under section 124B(1);
"reporter" --
(a) means a person who makes a report; and
20 (b) in sections 124F, 124G and 124H includes a
person who, in good faith --
(i) provides information on the basis of
which a report is made; or
(ii) is otherwise concerned in making a
25 report or causing a report to be made,
except the child about whom a report is
made, being the child believed by the
reporter to be the subject of sexual abuse;
"sexual abuse", in relation to a child, includes sexual
30 behaviour in circumstances where --
(a) the child is the subject of bribery, coercion, a
threat, exploitation or violence; or
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(b) the child has less power than another person
involved in the behaviour; or
(c) there is a significant disparity in the
developmental function or maturity of the
5 child and another person involved in the
behaviour;
"teacher" means --
(a) a person who, under the Western Australian
College of Teaching Act 2004, is registered,
10 provisionally registered or has a limited
authority to teach; or
(b) a person who is appointed under the School
Education Act 1999 section 236(2) as a
member of the teaching staff of a community
15 kindergarten; or
(c) a person who provides instruction in a course
that is --
(i) mentioned in the School Education
Act 1999 section 11B(1)(a), (b) or (e);
20 and
(ii) prescribed for the purposes of this
definition;
or
(d) a person who instructs or supervises a
25 student who is participating in an activity
that is --
(i) part of an educational programme of a
school under an arrangement
mentioned in the School Education
30 Act 1999 section 24(1); and
(ii) prescribed for the purposes of this
definition;
or
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(e) a person employed by the chief executive
officer as defined in the Young Offenders
Act 1994 section 3 to teach detainees at a
detention centre as defined in that section.
5 124B. Matters concerning sexual abuse of children to be
reported by certain persons
(1) A person who --
(a) is a doctor, nurse, midwife, police officer or
teacher; and
10 (b) believes on reasonable grounds that a child --
(i) has been the subject of sexual abuse that
occurred on or after commencement
day; or
(ii) is the subject of ongoing sexual abuse;
15 and
(c) forms the belief --
(i) in the course of the person's work
(whether paid or unpaid) as a doctor,
nurse, midwife, police officer or
20 teacher; and
(ii) on or after commencement day,
must report the belief as soon as practicable after
forming the belief.
Penalty: $6 000.
25 (2) For the purposes of subsection (1) the report must be
made to --
(a) the CEO; or
(b) a person approved by the CEO; or
(c) a person who is a member of a class of persons
30 approved by the CEO.
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
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(3) In a prosecution for an offence under subsection (1) it
is a defence for the person charged to prove that he or
she honestly and reasonably believed that --
(a) all of the reasonable grounds for his or her
5 belief were the subject of a report made by
another person; or
(b) the CEO had caused, or was causing, inquiries
to be made under section 31 about the child's
wellbeing; or
10 (c) the CEO had taken, or was taking, action under
section 32 in respect of the child's wellbeing.
(4) A requirement that a person has under subsection (1) is
in addition to, and does not affect, any other function
that the person has in respect of the child in the course
15 of the person's work as a doctor, nurse, midwife, police
officer or teacher.
124C. Reports: form and content
(1) A report may be written or oral but if oral the reporter
must make a written report as soon as practicable after
20 the oral report is made.
Penalty: $3 000.
(2) A written report may, but does not need to be, in a
form approved by the CEO.
(3) A report is to contain --
25 (a) the name and contact details of the reporter;
and
(b) the name of the child or, if the child's name
cannot be obtained after reasonable inquiries, a
description of the child; and
30 (c) if known to the reporter --
(i) the child's date of birth; and
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(ii) information about where the child lives;
and
(iii) the names of the child's parents or other
responsible persons as defined in
5 section 41(1);
and
(d) the grounds for the reporter's belief that the
child has been the subject of sexual abuse or is
the subject of ongoing sexual abuse; and
10 (e) any other information that is prescribed.
(4) A person mentioned in section 124B(2)(b) or (c) who
receives --
(a) a written report must give the report to the CEO
as soon as practicable after receiving it; or
15 (b) an oral report must inform the CEO of the
contents of the report as soon as practicable
after receiving it.
Penalty: $6 000.
(5) As soon as practicable after receiving a written report
20 the CEO must advise the reporter of the receipt.
124D. Reports: who receives copies
(1) In this section --
"Commissioner of Police" means the person holding
or acting in the office of Commissioner of Police
25 under the Police Act 1892.
(2) The CEO is to give a copy of each written report to the
Commissioner of Police as soon as practicable after the
report is received by the CEO.
(3) Nothing in subsection (2) affects the functions of the
30 CEO or any other person under section 23, 31 or 32.
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Children and Community Services Amendment (Reporting Sexual Abuse
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124E. When a prosecution can be commenced
A prosecution for an offence under section 124B(1)
or 124C(4) --
(a) must be commenced within 36 months after the
5 date on which the offence was allegedly
committed; or
(b) with the consent of the Attorney General, may
be commenced at a later time.
124F. Confidentiality of reporter's identity
10 (1) In this section --
"the child" means the child about whom a report is
made by the reporter, being the child believed by
the reporter to be the subject of sexual abuse.
(2) A person who, in the course of duty, becomes aware of
15 the identity of a reporter, must not disclose identifying
information to another person unless --
(a) the disclosure is made for the purpose of, or in
connection with, performing functions under
this Act; or
20 (b) the disclosure is made with the written consent
of the reporter; or
(c) the disclosure is made to or by a police officer
for the purpose of, or in connection with --
(i) an investigation of a suspected offence
25 under a written law in relation to the
child; or
(ii) the conduct of a prosecution of an
offence under a written law in relation
to the child;
30 or
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(d) the disclosure is made for the purpose of, or in
connection with, the prosecution of an
offence --
(i) in relation to the reporter, under --
5 (I) section 124B(1) in the case
where a report is made; or
(II) section 124C(1) or 124F(2);
or
(ii) under section 124C(4) or 244 in relation
10 to the report;
or
(e) the disclosure is made by an officer for the
purposes of protection proceedings in relation
to the child; or
15 (f) the disclosure is made by an officer for the
purposes of an application under section 94 for
the review of a decision relating to the child; or
(g) the disclosure is made by an officer for the
purposes of a matter or proceedings relating to
20 the child arising under the Family Law
Act 1975 of the Commonwealth Part VII or the
Family Court Act 1997 Part 5; or
(h) the disclosure is made by an officer for the
purposes of an application to, or appeal from a
25 decision of, the Family Court under the
Adoption Act 1994 that relates to the child; or
(i) the disclosure is made by an officer for the
purposes of any other legal proceedings of a
kind prescribed for the purposes of this
30 subsection and relating to the child; or
(j) the disclosure is made in legal proceedings with
the leave of the court or tribunal concerned; or
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
(k) the identifying information has already been
disclosed in legal proceedings and the court or
tribunal concerned has not made an order
prohibiting further disclosure.
5 Penalty: $24 000 and imprisonment for 2 years.
124G. Evidence and legal proceedings
(1) A written report or a written record as to the contents
of an oral report is to be taken to be a document that is
not required to be disclosed under the Criminal
10 Procedure Act 2004 section 35, 42, 61, 62, 95 or 96
unless --
(a) the proceedings are for the prosecution of an
offence mentioned in section 124F(2)(d); or
(b) the court concerned orders otherwise.
15 (2) A party to any legal proceedings cannot require a
person to produce to the party, or the court or tribunal
concerned, a report or evidence of the contents of a
report unless --
(a) the proceedings are for the prosecution of an
20 offence mentioned in section 124F(2)(d); or
(b) the court or tribunal concerned gives leave to
do so.
(3) A report or evidence of the contents of a report is not
admissible in any legal proceedings unless --
25 (a) the proceedings are for the prosecution of an
offence mentioned in section or
124F(2)(d); (b) the report or the evidence of the contents of the
report is given by an officer and the
proceedings are of a kind mentioned in
30 section 124F(2)(e) to (i) inclusive; or
(c) the court or tribunal concerned orders
otherwise.
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
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(4) In any legal proceedings a person must not be asked
and, if asked, is entitled to refuse to answer, any
question the answer to which would give identifying
information in relation to a reporter unless --
5 (a) the proceedings are for the prosecution of an
offence mentioned in section 124F(2)(d); or
(b) the person is an officer and the proceedings are
of a kind mentioned in section 124F(2)(e) to (i)
inclusive; or
10 (c) the court or tribunal concerned gives leave to
do so.
(5) In any legal proceedings a person must not be asked
and, if asked, is entitled to refuse to answer, any
question as to whether a particular matter is the subject
15 of a report unless --
(a) the proceedings are for the prosecution of an
offence mentioned in section 124F(2)(d); or
(b) the person is an officer and the proceedings are
of a kind mentioned in section 124F(2)(e) to (i)
20 inclusive; or
(c) the court or tribunal concerned gives leave to
do so.
(6) Any other evidence as to identifying information in
relation to a reporter must not be adduced in any legal
25 proceedings unless --
(a) the proceedings are for the prosecution of an
offence mentioned in section 124F(2)(d); or
(b) the evidence is adduced by an officer and the
proceedings are of a kind mentioned in
30 section 124F(2)(e) to (i) inclusive; or
(c) the court or tribunal concerned orders
otherwise.
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 5
124H. Orders, leave of courts etc.
(1) In this section --
"leave" means leave for the purposes of
section 124F(2)(j) or 124G(2)(b), (4)(c) or (5)(c);
5 "order" means an order for the purposes of
section 124G(1)(b), (3)(c) or (6)(c).
(2) A court or tribunal must not make an order or grant
leave unless --
(a) it is satisfied that to safeguard and promote the
10 wellbeing of the child about whom the report
was made it is necessary for the order to be
made or for the leave to be given; or
(b) it is satisfied that --
(i) the identifying information, or the
15 content of the report (as is relevant in
the case) is of critical importance in the
proceedings; and
(ii) there is compelling reason in the public
interest for disclosure of the identifying
20 information, or disclosure, production or
adducing of the report or evidence (as is
relevant in the case);
or
(c) in a case concerning the disclosure of
25 identifying information in relation to a reporter,
the reporter consents to the disclosure.
(3) The court or tribunal may make an order or grant leave
on any condition that it thinks fit having regard to the
need to prevent, as far as practicable, further disclosure
30 of the information that is the subject of the order or
leave.
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Children and Community Services Amendment (Reporting Sexual Abuse
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(4) An application for an order or leave --
(a) must not be heard in public; and
(b) must be dealt with in a way that protects, as far
as practicable, the identity of the reporter
5 pending a decision on the application.
".
6. Section 129 amended
(1) Section 129(1) is amended as follows:
(a) after paragraph (d) by deleting the full stop and inserting
10 instead --
"
; or
(e) makes a report under section 124B(1); or
(f) notifies the CEO of an allegation in accordance
15 with a requirement to do so under regulations
made under the Child Care Services Act 2007.
";
(b) by inserting "or" at the end of paragraphs (a) and (b).
(2) Section 129(2) is amended as follows:
20 (a) by inserting after "information" --
" or making the report or notification ";
(b) in paragraph (c) by inserting after "standards" --
"
or any principles of conduct applicable to the
25 person's employment
";
(c) by inserting "and" at the end of paragraph (a).
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 7
(3) After section 129(2) the following subsection is inserted --
"
(3) The protection given by subsection (1) also applies to a
person who, in good faith --
5 (a) performs a duty that the person has under
section 124C(4); or
(b) provides information on the basis of which --
(i) the information mentioned in
subsection (1)(a), (b), (c) or (d) is given;
10 or
(ii) a report is made under section 124B(1);
or
(iii) the CEO is notified as mentioned in
subsection (1)(f);
15 or
(c) is otherwise concerned in --
(i) providing the information mentioned in
subsection (1)(a), (b), (c) or (d) or
causing the information to be provided;
20 or
(ii) making a report under section 124B(1)
or causing a report to be made; or
(iii) notifying the CEO as mentioned in
subsection (1)(f) or causing the CEO to
25 be so notified.
".
7. Section 142 amended
Section 142 is amended as follows:
(a) in paragraph (c) by inserting after "standards" --
30 "
or any principles of conduct applicable to the
person's employment
";
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 8
(b) by inserting "and" at the end of paragraph (a).
8. Section 238 amended
After section 238(8) the following subsection is inserted --
"
5 (9) This section does not apply to the production of a
report under section 124B(1) in proceedings other than
for the prosecution of an offence mentioned in
section 124F(2)(d) but if a court or tribunal grants
leave for the purposes of section 124G(2)(b) in relation
10 to a report, subsections (5) to (8) apply as if the report
had been produced in response to a requirement
mentioned in subsection (2).
".
9. Section 240 amended
15 (1) Section 240(1) is amended by deleting the definition of
"notifier" and inserting instead --
"
"notifier" means a person who --
(a) in good faith gives information, or causes
20 information to be given, to the CEO or
another officer that raises concerns about the
wellbeing of a child; or
(b) notifies the CEO of an allegation in
accordance with a requirement to do so
25 under regulations made under the Child Care
Services Act 2007; or
(c) in good faith provides information on the
basis of which the CEO is notified as
mentioned in paragraph (b); or
30 (d) in good faith is otherwise concerned in
notifying the CEO as mentioned in
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Children and Community Services Amendment (Reporting Sexual Abuse
of Children) Bill 2007
s. 9
paragraph (b) or causing the CEO to be so
notified,
but does not include a reporter as defined in
section 124A;
5 "the child" means the child about whom information
is given by the notifier, being the child --
(a) in respect of whose wellbeing concerns are
...