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Failure to Report Laws

The Royal Commission into Institutional Responses to Child Sexual Abuse found that adults who become aware of sexual abuse involving a child do not always report it to police, nor do they always take steps to protect the child from abuse’.

The Royal Commission also revealed systemic practices of hiding child sexual abuse within institutions. Failing to report, or concealing child sexual abuse, has left vulnerable victims without protection. In some cases that behaviour has allowed the offender to commit further offences against other children.

Failure to Protect Laws

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that all jurisdictions introduce a targeted offence of failure to protect a child against institutional child sexual abuse.

This recommendation from the Royal Commission is aimed at improving the prevention of child sexual abuse. Current reporting requirements, like mandatory reporting and Reportable Conduct, are reactive in that they require an action after instances of child sexual abuse have occurred, but do not require any action to prevent them from occurring.

The Royal Commission noted that ‘[i]t is not and should not be thought to be sufficient to wait until abuse occurs and then inform the police’. The Royal Commission says a new criminal offence should be created to emphasise the responsibility of individuals within an institution to act to protect children from known risks.

Vulnerable Witnesses

The Royal Commission recommends that the availability of pre-trial hearings should be extended to adult victims of historic child sexual abuse and to other witnesses as the prosecution considers necessary, such as family members .

The Royal Commission also recommends that where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure.

Intermediary Scheme

The Royal Commission has recommended that state and territory governments establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales2and identified the following important features of the scheme:

• Intermediaries should have relevant professional qualifications to assist in communicating with vulnerable witnesses.
• Intermediaries should be provided with training in their role and understand that their duty is to assist the court to communicate with the witness and to be impartial.
• Intermediaries should be available at both the police interview stage and trial stage.
• Intermediaries should be able to provide recommendations to police and the court on how best to communicate with the witness and be able to intervene in an interview or examination where they observe a communication breakdown.

Other Reforms

The Royal Commission made a series of technical recommendations about how to reform trial procedures to ensure accurate fact finding and fairness. These recommendations involved a detailed analysis of the fundamentals of the criminal justice system and how the right of an accused person to a fair trial intersects with the pursuit of truth, and the equally important rights of survivors of sexual abuse to a fair trial.

How evidence is presented of the circumstances of abuse, how courts give direction to juries in considering that evidence, and how decisions are made about sentencing were all thoroughly considered. The ACT Government’s work to implement the Royal Commission will be focused on engagement with legal practitioners, both prosecuting and defending, and the community to ensure that the rules in place for trials reflect best practice in terms of arriving at a fair, impartial outcome in criminal trials.

OTHER REFORMS

• Reform of Tendency and Coincidence
• Reform of Judicial Directions and Warnings
• Sentencing Standards in Historical Cases

Should ACT laws about evidence, and how evidence is considered by Courts and juries, be reformed with a focus on ensuring outcomes that match evidence about survivor testimony, even where this means evidence that wouldn’t normally be admitted to court gets considered?