Failure to disclose sexual offence committed against child under the age of 16 years
327 Failure to disclose sexual offence committed against child under the age of 16 years
In this section—
interests includes reputation, legal liability and financial status;
organisation includes a body corporate or an unincorporated body or association, whether the body or association—
is based in or outside Australia; or
is part of a larger organisation;
S. 327(1) def. of sexual offence substituted by No. 5/2018 s. 6.
sexual offence means—
an offence committed under Subdivision (8A), (8B), (8C), (8E), (8F) or (8FA) of Division 1 of Part I on or after 1 July 2017; or
an offence committed under Subdivision (8D) of Division 1 of Part I on or after 1 July 2017 other than an offence that only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A(1), where the torture, cruelty or abuse is not sexual; or
Example
An offence committed under Subdivision (8D) of Division 1 of Part I that relates to child abuse material that depicts or describes a child as a victim of sexual abuse.
an offence committed before 1 July 2017 under Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) as then in force; or
an attempt to commit an offence referred to in paragraph (a), (b) or (c); or
an assault with intent to commit an offence referred to in paragraph (a), (b) or (c).
S. 327(2) amended by No. 36/2014 s. 7(1)(a).
Subject to subsections (5) and (7), a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.
Penalty: 3 years imprisonment.
For the purposes of subsection (2) and without limiting that subsection, a person has a reasonable excuse for failing to comply with that subsection if—
the person fears on reasonable grounds for the safety of any person (other than the person reasonably believed to have committed, or to have been involved in, the sexual offence) were the person to disclose the information to police (irrespective of whether the fear arises because of the fact of disclosure or the information disclosed) and the failure to disclose the information to police is a reasonable response in the circumstances; or
the person believes on reasonable grounds that the information has already been disclosed to police by another person and the firstmentioned person has no further information.
Example
A person may believe on reasonable grounds that the information has already been disclosed to police by another person if the person has made a report disclosing all of the information in his or her possession in compliance with mandatory reporting obligations under the Children, Youth and Families Act 2005.
For the purposes of subsection (2) and without limiting that subsection, a person does not have a reasonable excuse for failing to comply with that subsection only because the person is concerned for the perceived interests of—
the person reasonably believed to have committed, or to have been involved in, the sexual offence; or
any organisation.
A person does not contravene subsection (2) if—
the information forming the basis of the person's belief that a sexual offence has been committed came from the victim of the alleged offence, whether directly or indirectly; and
the victim was of or over the age of 16 years at the time of providing that information to any person; and
the victim requested that the information not be disclosed.
Subsection (5) does not apply if—
at the time of providing the information, the victim of the alleged sexual offence—
has an intellectual disability (within the meaning of the Disability Act 2006); and
does not have the capacity to make an informed decision about whether or not the information should be disclosed; and
the person to whom the information is provided is aware, or ought reasonably to have been aware, of those facts.
A person does not contravene subsection (2) if—
the person comes into possession of the information referred to in subsection (2) when a child; or
S. 327(7)(b) amended by No. 30/2019 s. 16.
the information referred to in subsection (2) would be privileged under Part 3.10 (other than section 127) of Chapter 3 of the Evidence Act 2008; or
the information referred to in subsection (2) is a confidential communication within the meaning of section 32B of the Evidence (Miscellaneous Provisions) Act 1958; or
the person comes into possession of the information referred to in subsection (2) solely through the public domain or forms the belief referred to in subsection (2) solely from information in the public domain; or
S. 327(7)(e) amended by No. 36/2014 s. 7(1)(b).
the person is a police officer acting in the course of his or her duty in respect of the victim of the alleged sexual offence; or
the victim of the alleged sexual offence has attained the age of 16 years before the commencement of section 4 of the Crimes Amendment (Protection of Children) Act 2014.
S. 327(8) inserted by No. 19/2017 s. 54.
A prosecution for an offence under subsection (2) must not be commenced without the consent of the Director of Public Prosecutions.
S. 327(9) inserted by No. 19/2017 s. 54.
In determining whether to consent to a prosecution for an offence under subsection (2), the Director of Public Prosecutions must consider whether the alleged offender has been subjected to family violence (within the meaning of the Family Violence Protection Act 2008) that is relevant to the circumstances in which the offence is alleged to have been committed.
New s. 328 inserted by No. 36/2014 s. 4.
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