In 2014, the law in Victoria was changed to create the failure to disclose offence.
The failure to disclose offence applies to you if:
- you are an adult, and
- you have information that leads you to form a ‘reasonable belief’ that another adult has sexually offended against a child under 16 in Victoria.
If this applies to you, you must report the information to police as soon as possible, unless:
- you have a ‘reasonable excuse’ for not reporting the information, or
- you are exempt from the offence.
If you fail to report the information, you may be charged with a criminal offence. The maximum penalty is three years imprisonment.
The failure to disclose offence helps to ensure that protecting children from sexual abuse is the responsibility of the whole community.
On this page you can learn more about:
- what a ‘reasonable belief’ of child sexual abuse means
- when you have a ‘reasonable excuse’ for not reporting information to police
- when you are exempt from the failure to disclose offence
- how to make a report to police.
The failure to disclose offence was introduced in Victoria in response to the Betrayal of Trust report in 2013.
Reporting historical information about child sexual abuse
You must report information about child sexual abuse to police only if the alleged victim was still aged under 16 on 27 October 2014, when this offence came into effect.
As of 17 February 2020, if you are a religious minister who hears information in religious confession that leads you to form a reasonable belief of child sexual abuse, you must report that information to police.
Reasonable belief and child sexual abuse
You only need to report to police when you have seen or heard something that has led you to form a ‘reasonable belief’ that an adult has sexually abused a child.
You have a ‘reasonable belief’ if a reasonable person in the same circumstances as you would believe that an adult had sexually abused a child, for the same reasons you believed it. For example, you might form a reasonable belief that a child has been sexually abused if:
- the child tells you they have been sexually abused
- the child tells you they know someone who has been sexually abused (which may be a way of talking about themselves)
- someone who knows the child tells you the child has been sexually abused
- you observe signs of sexual abuse in the child
- you are a qualified professional who observes the child’s behaviour or development, which leads you to believe the child has been sexually abused.
You do not need to report rumours or unfounded suspicions.
Reasonable excuses for not reporting to police
You may have a ‘reasonable excuse’ for not reporting information about child sexual abuse to police if, for example:
- you fear for your safety, or the safety of another person, or
- you believe the information has already been reported to the police.
If you are charged with the failure to disclose offence, a court or jury may consider whether it was reasonable for you not to report to police in the circumstances.
You will not be guilty of an offence if you have a reasonable excuse for not reporting.
Reasonable excuse – Fear for safety
You have an excuse for not reporting to police if:
- you reasonably fear for your safety or the safety of another person, except the person you believe committed, or was involved in, the sexual offence, and
- your failure to report is a reasonable response in the circumstances.
This excuse helps to protect children, their families and others from harm where reporting information might risk people’s safety. For example, a mother may decide not to report her partner sexually abusing her child because she fears violence against her or her child.
The fear must be reasonable from the perspective of that person in those circumstances. This recognises that this person is best placed to judge whether their safety, or the safety of another person, is endangered.
Reasonable excuse – Belief that the information has already been disclosed
You have an excuse for not reporting to police if:
- you believe on reasonable grounds that another person has already disclosed the information to police, and
- you have no further information to add.
For example, you may have this belief if you have disclosed the information in a ‘mandatory report’ to Department of Health and Human Services Child Protection under the Children, Youth and Families Act 2005 , as Child Protection will provide the information you have reported to them to police.
People who must make mandatory reports are:
- teachers and school principals
- doctors, nurses and midwives
- out-of-home care workers (excluding volunteer foster carers and kinship carers)
- early childhood teachers and workers
- registered psychologists
- youth justice workers
- school counsellors
- people in religious ministry.
This excuse means that people do not need to report the same information to different agencies.
Excuses that are not reasonable
You do not have a reasonable excuse for failing to disclose information if you are only concerned about the ‘perceived interests’ of:
- the person you believe committed, or was involved in, the sexual offence, or
- any organisation.
‘Perceived interests’ includes reputation, legal liability and financial status. For example, a religious minister’s concern for the reputation of a church where an adult sexually abused a child is not a reasonable excuse for not reporting to police.
This ensures that a child’s best interests are placed first.
Exemptions from the offence
You may be exempt from the offence if:
- a victim aged 16 or over has provided the information and requests confidentiality
- you were a child when you received the information
- the information would be privileged
- the information is a ‘confidential communication’
- the information is in the public domain
- you are a police officer acting in the course of your duty.
Exemptions are important because they can:
- help to protect victims of family violence from the risk of further harm
- enable victims of sexual abuse to seek help and treatment, even if they do not want to report the abuse
- enable professionals to help and treat victims of sexual abuse.
A victim aged 16 or over requests confidentiality
A victim may decide they do not want the sexual abuse to be reported. Where a victim is capable of making an informed decision, the law does not require the abuse to be reported.
This means you do not need to report to police:
- if the information comes from a victim aged 16 or over, and
- the victim requests that the information not be reported.
The law recognises that a child under 16 is not able to make this kind of decision, as they may not fully understand the effects of abuse.
You will still need to report to police if:
- the victim had an intellectual disability when they provided the information, and
- the victim did not have the capacity to make an informed decision about disclosure when they provided the information, and
- you are aware or should reasonably have been aware of these facts.
You were a child when you received the information
If you were under 18 when you received the information, you do not have to report it when you turn 18.
This exemption protects children from the burden of knowing they will have to report the information to police when they turn 18.
The information would be privileged
You will not be required to report information that would be privileged, including information protected under:
- client legal privilege
- journalist privilege.
The religious confessions privilege no longer applies to this offence.
The information is a ‘confidential communication’
You do not need to report to police if:
- you are a registered medical practitioner or counsellor, and
- you obtain the information from a victim or alleged victim of a sexual offence while treating them.
This exemption aims to protect registered medical practitioners and counsellors from criminal liability when they are treating a victim or alleged victim of sexual offending.
If you are a registered medical practitioner, you must still make a ‘mandatory report’ to Child Protection where required.
The information is in the public domain
You do not have to report to police if:
- you receive the information only through the public domain, or
- you form a reasonable belief only from information in the public domain.
Information may be in the public domain if, for example, it is on television or radio, in the newspaper or on the internet.
You are a police officer acting in the course of your duty
You do not need to report information if you are a police officer acting in the course of your duty in respect of the victim of the alleged sexual offence.
Protections for people who report child sexual abuse
If you disclose information about child sexual abuse to police, evidence may be given about that information in a legal case. Evidence that identifies, or could identify, you will be confidential unless:
- you consent in writing to the evidence being given, or
- a court or tribunal decides it is necessary in the interests of justice for the evidence to be given.
If you report to police in good faith, your report does not:
- amount to unprofessional conduct or a breach of your professional ethics, or
- subject you to any liability in relation to the report.
How to make a report to police
If you want to report to police that a child is in immediate risk of being sexually abused please call Triple Zero (000)
Alternatively, you can contact your local police station
If you or someone you know has experienced child sexual abuse in an institution, we encourage you to contact Victoria Police's Sano Taskforce via email firstname.lastname@example.org