49O

Failure by a person in authority to protect a child from a sexual offence

In force

S. 49O inserted by No. 47/2016 s. 16.

(1)

A person (A) commits an offence if—

(a)

A occupies a position within, or in relation to, a relevant organisation; and

(b)

there is a substantial risk that a relevant child will become the victim of a sexual offence committed by another person who is—

(i)

18 years of age or more; and

(ii)

a person associated with the relevant organisation; and

(c)

A knows that the risk exists; and

(d)

A, by reason of A's position, has the power or responsibility to reduce or remove that risk; and

(e)

A negligently fails to reduce or remove that risk.

(2)

A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3)

For the purposes of subsection (1), a person negligently fails to reduce or remove a risk if that failure involves a great falling short of the standard of care that a reasonable person would exercise in the circumstances.

(4)

For the avoidance of doubt, in a prosecution for an offence against subsection (1), it is not necessary to prove that a sexual offence has been committed.

(5)

It is immaterial that some or all of the circumstances constituting an offence against subsection (1) occurred outside Victoria, so long as the relevant child was in Victoria at any time while the substantial risk referred to in subsection (1)(b) existed.

(6)

It is immaterial that both A and the relevant child were outside Victoria at the time at which some or all of the circumstances constituting an offence against subsection (1) occurred, so long as the sexual offence was at risk of occurring in Victoria.

(7)

In this section—

person associated, in relation to a relevant organisation, includes but is not limited to a person who is an officer, employee, manager, owner, volunteer, contractor or agent of the organisation but does not include a person only because the person receives services from the organisation;

relevant child means a child (whether identifiable or not) under the age of 16 years who is, or may come, under the care, supervision or authority of a relevant organisation;

relevant organisation means—

(a)

an organisation that exercises care, supervision or authority over children, whether as its primary function or otherwise, and includes but is not limited to—

(i)

a church; and

(ii)

a religious body; and

(iii)

a school; and

(iv)

an education and care service within the meaning of the Education and Care Services National Law (Victoria); and

(v)

a children's service within the meaning of the Children's Services Act 1996; and

(vi)

an out of home care service within the meaning of the Children, Youth and Families Act 2005; and

(vii)

a hospital; and

(viii)

a government department; and

(ix)

a government agency; and

(x)

a municipal council; and

(xi)

a public sector body; and

(xii)

a sporting group; and

(xiii)

a youth organisation; and

(xiv)

a charity or benevolent organisation; or

(b)

an organisation that, in accordance with an agreement or arrangement with an organisation referred to in paragraph (a), is required or permitted to engage in activities associated with the care, supervision or authority over children exercised by the organisation referred to in paragraph (a);

sexual offence means—

(a)

an offence against a provision of Subdivision (8A), this Subdivision (other than this section), (8C), (8D), (8E), (8F) or (8FA); or

(b)

an attempt to commit an offence covered by paragraph (a) (other than section 49K); or

(c)

an assault with intent to commit an offence covered by paragraph (a).

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