Mandatory notification: early warning of new obligations

The Queensland Parliament recently passed the Child Protection Reform Amendment Act 2014, which contained a new mandatory notification provision impacting on teachers.

The legislation followed an inquiry ("the Carmody Report") a couple of years ago, which recommended a review of the mandatory notification provision relating to the responsibilities of the Department of Child Safety, that is, whether intervention in families is necessary. This obligation is new so far as teachers are concerned and will be the subject of substantial in-service training between now and when that part of the legislation comes into force, which is likely to be early 2015.

Before turning to the key features of the mandatory notification provisions which will soon be in the Child Protection Act (which did not previously impose mandatory notification obligations on teachers), it is appropriate to note the other sources of similar obligations.

The general duty of care in relation to children in respect of whom teachers have responsibilities itself always raises the issue, when a teacher becomes aware of known or suspected harm, as to whether that teacher ought to report it to an appropriate person (carefully and discreetly and without irrelevant gossip).

This is supported by employer-imposed obligations, for example under student protection policies. Typically, and appropriately, the employer obligations are cast in wide terms, both in terms of whether the suspected harm is at or away from school and the definition of harm, which typically, in employer instructions, includes emotional and psychological abuse.

The next sources of obligation are those under the Education (General Provisions) Act which relate to mandatory notification in respect of known or suspected or likely sexual abuse. This has been the subject of a number of articles recently so we will not deal with that further except to make the point again that in respect of known or reasonably suspected sexual abuse, a criminal charge may be laid against the person who fails to discharge the statutory obligation.

In relation to the new obligation, the key features are as follows.
The provisions are contained in Division 2 of the Child Protection Act headed “Mandatory Reporting by Particular Persons” comprising Sections 13E to 13J.

• The relevant section applies to a doctor, a registered nurse, a teacher, certain police officers and people performing child advocate functions under the Public Guardian Act 2014.
• The harm in question is “physical or sexual abuse”.
• The obligation arises where there is “a reportable suspicion” about a child and this is defined as a reasonable suspicion that the child:
• “has suffered, is suffering or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse”
• “may not have a parent able and willing to protect the child from the harm”.

In these circumstances, there will be an obligation to report to the Chief Executive of the Department of Child Safety.

There are a number of helpful provisions in relation to conferrals with colleagues and we understand there will be very substantial training.

Although no criminal charges can be laid for non-compliance, it is clear that non-compliance would elevate in a teacher registration or employer discipline case the significance of failure to comply, as this obligation is imposed directly on teachers by the Parliament.

This important amendment will be the subject of attention over the next six months and will be binding in 2015.

It will be important for schools to be sensitive to the various sources of obligations, to understand the reasons for them, and to ensure that staff address the issues and that people in positions of responsibility make themselves available to assist staff requesting advice.

Andrew Knott
TressCox Lawyers

Queensland Teachers' Journal, Vol 119 No 7, 3 October 2014, p25