2

2009

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR CHILDREN AND FAMILIES 

CARE AND PROTECTION OF CHILDREN AMENDMENT BILL 2009

SERIAL NO. 49

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends section 26 of the Care and Protection of Children Act for the purpose of clarifying the mandatory obligation to report actual or potential harm or exploitation in children, including where a reasonable belief is formed that a child is or is likely to become the victim of a sexual offence.

The Bill clarifies that is an offence under section 26 for any person to fail to report a reasonable belief that a child has, or is likely:
·	To suffer harm or exploitation;
·	To be a victim of a sexual offence, where the child is under the age of 14 years;
·	To be a victim of a sexual offence pursuant to section 128 of the Criminal Code 

Additional obligations are imposed on health practitioners and persons who perform work of a kind prescribed by regulation to report a reasonable belief that a child:
·	Is aged 14 or 15 years and has been or is likely to be the victim of a sexual offence; and 
·	The age differential between the child and the sexual partner is more than 2 years. 

NOTES ON CLAUSES

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Care and Protection of Children Amendment Act 2009.

Clause 2.	Act amended

The Bill amends the Care and Protection of Children Act. 

Clause 3.	Repeal and substitution of section 26

This clause restates the existing obligations of all members of the community to report harm or exploitation of a child to the Chief Executive Officer, Department of Health and Families, or the NT Police, where the reporter has a reasonable belief that the child has suffered or is likely to suffer harm and exploitation.

“Child” is defined at section 13 of the Care and Protection of Children Act. 
“Harm” is defined at section 15 of the Care and Protection of Children Act.
“Exploitation” is defined at section 16 of the Care and Protection of Children Act. 

Harm and exploitation may or may not involve sexual harm and/or sexual exploitation. 

The penalty for failing to report is a maximum fine of 200 penalty units. 

Clause 3 introduces considerations for use in determining whether or not the obligation has arisen.  Proposed section 26(1) (a) (ii) states that a report must be made if a child less than 14 years has been or is likely to be a victim of a sexual offence.

“Sexual offence” is defined in section 3 of the Care and Protection of Children Act. 

Proposed section 26(1) (a) (iii) states that a report must be made if a child has been or is likely to be a victim of an offence against section 128 of the Criminal Code. 

Section 128 of the Criminal Code provides that it is an offence for an adult to have sexual intercourse with or commit an act  of gross indecency on a child aged 16-17 years, in circumstances where there exists a relationship of ‘special care’ between the child and the adult. Special care relationships are defined to include, but are not limited to, step-parents, sporting coaches, teachers, or religious instructors. 

Clause 3 introduces additional reporting obligations for persons who are health practitioners, and other forms of work prescribed by regulation. 

“Health Practitioner” is defined at section 3 of the Health Practitioners Act.

These classes of persons must report to either the Chief Executive Officer, Department of Health and Families, or NT Police, if they reasonably believe that a child aged 14 or 15 years has been or is likely to be the victim of a sexual offence, and there is more than a 2 year age difference between the child and the sexual partner.  

The maximum penalty for this class of persons failing to report is a fine of 200 penalty units. 

Clause 4.		Amendment of section 30 (Duties of other persons)

The purpose of this clause is to make consequential amendments to section 30 of the Act, which obliges persons providing control or direction to others engaged in child-related services, to make them  aware of the mandatory reporting obligations.

Sub clause 2A is introduced into section 30, making it an offence for a person who engages another to work as a health practitioner or other kind of work prescribed by regulation, to fail to inform the worker of the mandatory reporting obligations imposed under section 26(1) and 26(2).

Clause 5.	New Part 5.6

Clause 5 introduces Part 5.6 Transitional matters for Care and Protection of Children Amendment Act 2009, into the Care and Protection of Children Act. 

Clause 334 Application
Clause 334 is designed to clarify the operation of the amending Bill.  If the act alleged to have caused harm or exploitation to a child, is alleged to have occurred prior to the commencement of this Act, the reporting obligations under the amended Act will apply. 

Clause 6.	Further amendments

A schedule is attached to the Bill, making consequential amendments to sections 27(1), 28(1) and 29(1) of the Act, as well as the note immediately following section 32.