A policy requiring child protection notification every time police respond to an incident of family violence may have unintended consequences in that it may discourage women from reporting violence. Numerous studies have established that one of the greatest barriers for women to reporting violence or breaches of protection orders is the fear of state intervention and the removal of children. Therefore, a police directive to make automatic reports to child protection authorities—even though well-intentioned—could be counter-productive.
The Commissions are interested in hearing views as to when it is appropriate for police to make child protection notifications when responding to incidents of family violence.
Question 13–6 In what circumstances is it appropriate for police to make child protection notifications when responding to incidents of family violence?
The impact of mandatory reporting duties on criminal law
Mandatory reporting laws are a valuable mechanism for ensuring that cases of child abuse and neglect are notified, so that protective responses by both the child protective agency and the police are activated. To ensure the highest level of protection for children, however, the Commissions consider that the reporting thresholds need to be clear and sufficiently wide to ensure that children’s circumstances are not hidden. They also need to be sufficiently finely tuned so that those subject to a mandatory reporting duty are clear about their responsibilities, and what matters are covered by their duties.
The Commissions note that reforms have increased the mandatory reporting threshold in all jurisdictions but the ACT. The convergence of the majority of jurisdictions in setting a higher reporting threshold for most types of child abuse has left the ACT out of step with other jurisdictions. While the problems of mandatory reporting laws may not be as marked in the territory, the ACT Government may wish to review its legislative thresholds in light of reforms elsewhere in Australia.
Permitting disclosure of identity of mandatory reporters
The legislation in each jurisdiction contains a number of provisions to encourage compliance with mandatory reporting duties, including:
- protecting reporters from civil liability for breaches of duties or defamation, among other things, where the reports are made in good faith; and
- provisions protecting the identity of reporters.
Reports made to child protection agencies are confidential. Except to the extent that disclosure is required for the proper investigation of the report, a reporter’s identity cannot be disclosed unless the reporter has given his or her consent, or unless a court permits it.
The general prohibitions on disclosure have substantial implications for the capacity of agencies to share information about a child or young person for the purpose of investigating allegations of abuse and neglect. Requiring the police to seek a court order to authorise a child protection agency to disclose protected information is an obstacle to the timely and effective investigation of allegations of child abuse and neglect.
The Commissions accept that protecting the confidentiality of reporters is fundamental to encourage the disclosure of suspicions of abuse and neglect to the authorities. The reporter is generally entitled to maintain his or her privacy and to be immune from retaliatory action. However, a general prohibition on disclosure of the reporter’s identity or, more importantly, of information contained in the report (because the reporter’s identity could be deduced from it) may hinder the proper conduct of an investigation or prosecution of an offence against a child or young person.
In the Commissions’ preliminary view, all states and territories should permit a law enforcement agency to request, and receive, information contained in a report notwithstanding that it may result in the reporter’s identity being disclosed, where it is necessary for a proper investigation and subsequent prosecution of offences against children.
As a matter of good practice, the reporter’s consent should always be sought in the first instance. But where it is impractical to obtain consent, or where obtaining consent would prejudice the investigation of a serious offence, a court should be able to permit disclosure where it is satisfied that disclosure of the information is critical for the investigation or prosecution of a criminal offence against a child or young person. Given that families may move across jurisdictions, sometimes to avoid the reach of the law, the provisions should permit the information to be shared with police in other states and territories, as well as the Australian Federal Police.
Proposal 13–1 State and territory child protection legislation should contain an exemption from the prohibition on the disclosure of the identity of the reporter, or of information from which the reporter’s identity could be deduced, for information disclosed to a law enforcement agency where:
- the information is disclosed in connection with the investigation of a serious offence alleged to have been committed against a child or young person; and
- the disclosure is necessary for the purpose of safeguarding or promoting the safety welfare and wellbeing of any child or young person, whether or not the victim of the alleged offence.
Proposal 13–2 State and territory child protection legislation should also provide that the exemption in Proposal 13–1 does not apply unless a senior officer of the law enforcement agency to which the disclosure is made has certified in writing beforehand that:
- obtaining the reporter’s consent would prejudice the investigation of the serious offence concerned; or
- it is impractical to obtain the consent.
Proposal 13–3 State and territory child protection legislation should define law enforcement agency to be the police force of the relevant state, the Australian Federal Police and the police force of any other state and territory.
Proposal 13–4 State and territory child protection legislation should provide that the person or body that discloses the identity of a reporter—or the information in a report from which the reporter’s identity can be deduced— should notify the reporter of the disclosure unless it is impractical to do so, or would prejudice the investigation of the serious offence concerned.