In 2018 Section 43B was inserted into the Crimes Act 1900 (NSW) creating the offence of Failure to reduce or remove risk of child becoming victim of child abuse. This section applies to adults working or volunteering for an organization which carries out ‘child-related work’.

Who does the law apply to?

This new law applies to all organisations engaging in ‘child-related work’ as defined in the Child Protection (Working with Children) Act 2012. Child-related work is defined very broadly and includes:

• Mentoring and counseling services for children
• Child protection services
• Hospitals where children are treated and the direct provision of other child health services
• Clubs, associations, movements, societies or other bodies including cultural, recreational or sporting bodies providing programs or services for children
• Respite care or other support services for children with a disability
• Education and care services, child care centres, nanny services and other child care
• Schools or other educational institutions (other than universities) and private coaching or tuition of children
• Sporting, cultural or other entertainment venues used primarily by children and entertainment services for children
• Detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999
• Any religious organisation
• Refuges used by children, stay homes for children, boarding houses or other residential services for children and overnight camps for children
• transport services for children, including school bus services or taxi services for children with a disability

If an adult who is a ‘position holder’ for an organization:

• knows of a serious risk that another adult worker will commit a child abuse offence
• has the power or responsibility to reduce or remove that risk and negligently fails to do so

An offence has been committed. The maximum penalty for failing to reduce or remove risk of a child becoming a victim of child abuse is 2 years imprisonment. ‘Child abuse offence’ means an offence including murder or manslaughter of a child or infanticide and also includes:

• Acts done to the person with intent to murder
• Certain other attempts to murder
• Wounding or grievous bodily harm with intent
• Reckless grievous bodily harm or wounding
• Choking, suffocation and strangulation
• Spiking drink or food
• Using poison etc to endanger life or inflict grievous bodily harm
• Using poison etc to injure or to cause distress or pain
• Failing to provide necessities of life
• Female genital mutilation
• Kidnapping
• Attempting to commit any of the above

Significantly, for this offence to be proved, it is not a requirement that a child abuse offence has been committed.

A ‘position holder’ is broadly defined and includes employees, contractors, volunteers or otherwise.

What must be proved to be found guilty

This offence contains a number of elements which all must be proved before a person can be found guilty. The elements are:

• The accused person is an adult
• The accused person carries out work for an organisation
• The accused person is a ‘position holder’
• The organisation employs another adult worker who engages in child-related work
• There is a serious risk the other adult worker will commit a child abuse offence against a child
• The child is or may come under the care, supervision or authority of the organisation
• The accused person knows that the risk exists
• The accused person had the power or responsibility to reduce or remove that risk
• The accused person negligently failed to reduce or remove the risk

Unless each of these elements are proved, a person may not be found guilty of the offence.

A critical element in this offence that must be proved beyond a reasonable doubt by the police before an accused person can be found guilty, is that the accused had the required knowledge. ‘Knowledge’ is not defined in the Crimes Act however in the Victorian equivalent of this offence, ‘a person is generally taken to know that there is a risk if he or she is aware that it exists or will exist in the ordinary course of events. This is more than merely holding a tentative belief or suspicion.’

Being found guilty of failing to remove risk of a child becoming a victim of a child abuse offence is extremely serious. If you have been charged with this offence or think you may be charged, you should contact George Sten & Co Criminal Lawyers as soon as possible to speak with a specialist and be informed on your rights and the best steps to take to ensure you are properly defended.

For more information, contact George Sten & Co Criminal Lawyers on on (02) 9261 8640 or 0412 423 569 after business hours. We may also be contacted via email at [email protected].