Section 273B.5 Criminal Code Act 1995
Failing to Report Child Sexual Abuse Offence

273B.5  Failing to report child sexual abuse offence

Offence based on reasonable belief

(1) A person (the defendant) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child) under the care or supervision of the defendant, in the defendant’s capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to believe that a person (the potential offender):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 3 years.

Offence based on reasonable suspicion

(2) A person (the defendant) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child) under the care or supervision of the defendant, in the defendant’s capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to suspect that a person (the potential offender):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 2 years.

Absolute liability

(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).

Note: For absolute liability, see section 6.2.

Defences

(4) Subsection (1) or (2) does not apply if:

(a) the defendant reasonably believes that the information is already known:

(i) to the police force or police service of a State or Territory; or

(ii) to the Australian Federal Police; or

(iii) to a person or body to which disclosure of such information is required by a scheme established under, or for the purposes of, a law of a State or Territory, or of a foreign country (or part of a foreign country); or

(b) the defendant has disclosed the information to a person or body for the purposes of a scheme mentioned in subparagraph (a)(iii); or

(c) the defendant reasonably believes that the disclosure of the information would put at risk the safety of any person, other than the potential offender; or

(d) the information is in the public domain.

Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3).

(5) An individual is not excused from failing to disclose information as mentioned in paragraph (1)(e) or (2)(e) on the ground that disclosing the information might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability.

Note: For the admissibility in evidence of such information if disclosed in the course of protected conduct, and any information obtained as an indirect consequence, see subsections 273B.9(10) and (11).

Certain matters not required to be proved

(6) Subsection (1) or (2) applies:

(a) whether or not the child can be identified as a specific person; and

(b) whether or not any person actually believes or suspects the matter mentioned in paragraph (1)(c) or (2)(c); and

(c) whether or not the potential offender can be identified as a specific person; and

(d) whether or not a child sexual abuse offence is or was actually committed in relation to the child.

Alternative verdict

(7) If, on a trial of a person for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the person is guilty of the offence against that subsection; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against subsection (2);
it may find the person not guilty of the offence against subsection (1) but guilty of the offence against subsection (2).

(8) Subsection (7) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence against subsection (2).

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