Laws guiding school policies on harmful sexual behaviour
Australia’s compulsory education system for children aged 5-17 provides a universal gateway bringing children into contact with education services. Educators have extensive day-to-day exposure to children outside their family home and thus have a key role in identifying indicators of child safety concerns (Briggs 2012). In all states and territories, educators, including child care providers, early childhood educators, and school teachers, arc included as mandated reporters where they have a ‘reasonable suspicion’ or ‘belief on reasonable grounds’ that the child has experienced, or is at risk of, harm. New South Wales legislation specifies risk of ‘significant harm’ (Australian Institute of Family Studies 2017b). Queensland, Victoria, and the Australian Capital Territory only mandate reporting of physical and sexual abuse. New South Wales, Tasmania, Western Australia, and the Northern Territory’s report requirements encompass physical and sexual abuse as well as emotional or psychological abuse, neglect, and exposure to domestic violence. South Australia follows this formula, except it categorises exposure to family violence as emotional abuse (Australian Institute of Family Studies 2017b). South Australian educators arc mandated to report suspicion on reasonable grounds that a child or young person is, or may be, at risk. This is defined in the Children and Young People (Safety) Act 2017 (SA).
The state and territory child protection systems have primary responsibility in managing responses to reports of harmful sexual behaviour among children. The Australian Institute of Health and Wcllarc maps the processes following receipt of reports of a concern of child abuse in Figure 6.1.
As Figure 6.1 indicates, reports to child protection systems arc screened to determine if they reach a threshold of a child protection notification, or if they are defined as a family support matter and referred to other services. Child protection services have a responsibility to assess the needs of children and families who arc the subject of mandatory reports for therapeutic services, where these are available (Evertsz & Miller 2012). Reports of harmful sexual behaviours from education sites require action by child protection services to ensure children have access to therapeutic intervention.
Aside from mandatory reporting obligations, education sites such as schools, long day care, kindergartens, and preschools have continuing responsibility to provide a safe environment for staff and children (Department for Education 2019). Harmful sexual behaviours by children attending the site have to be managed in order to stop the behaviour, re-establish safety for all children who have been affected, and ensure that families have the information they need, whilst ensuring the privacy of those involved (Department for Education and Child Development 2013). The Young Offenders Act SA 1993 requires that the identities of children affected by harmful sexual
Not investigated (dealt with by other means)
Universal prevention services
Provision of case management and/or referrals as required
If the child is safe, case closed and exit from system
Intensive family support services
Figure 6.1 Child protection process in Australia 2017-18, AIHW 2019 (Peterson 2010)
behaviour are protected in South Australia, and similar provisions apply in other states and territories. Educators arc thus on the frontline of maintaining child safety, informing directly affected families and the wider school community, whilst protecting privacy of those directly involved.
Ongoing duty of care
As represented in Figure 6.1, a mandatory report to child protection central intake lines triggers an assessment and classification guiding subsequent
Laws and responsibilities 67 action. This involves investigating the concerning incidcnt/s and communicating with the families of children who have been directly involved. The focus on children’s support and recovery docs not necessarily extend to investigation of potential sources of sexualisation in the lives of children who have initiated problematic sexual activities. This is contrary to research, which has identified child sexual abuse, including exposure to explicit sexual material, as a precursor factor to most cases of harmful sexual behaviours by children (Hackett 2011; Shlonsky et al. 2017). When child protection investigations of family contexts are conducted, police may or may not be involved, with a consequence that children may receive therapy to stop the behaviours, whilst continuing to live with a family context where they arc exposed to abuse. This contingency means that therapeutic intervention for children can be undermined by an absence of safety.
For privacy reasons, educators arc not typically directly informed by child protection services of the outcomes for children who have been the subject of a mandatory report to child protection services. The child protection agencies’ actions subsequent to the mandatory report may result in no apparent changes to a child’s context. The child’s access to therapeutic support, the family’s role in relation to the child’s recovery, and ongoing action is unlikely to be actively discussed with staff who made the report (McCallum 2000). Education staff have an ongoing duty of care to manage safety of children and peer relationships without direct information or control over children’s circumstances or their access to effective therapeutic intervention.
Australia has a complex legal framework pertaining to sexual activity involving young children which is primarily aimed at protecting children from older or adult offenders. Beyond mandatory reporting, the legal obligations arising from harmful sexual behaviours among young children aged less than 10 years arc not prescribed. There is an expectation that children involved in harmful sexual behaviours will have access to therapeutic intervention; however, there is no guarantee that appropriate expert services will be available across Australia, including rural and remote centres.
Investigation of children’s exposures to risk factors, such as exposure to sexual abuse and other forms of abuse, is not mandated and is vulnerable to resource pressures arising from the high demands in child protection systems. Cases can be closed without active investigation if there arc no available staff.
The interests of children and families point to the need to ensure that children’s living circumstances do not expose them to abuse. Children and families must have access to the therapeutic services they need to prevent further harmful sexual behaviour and to recover from their experiences.
- 1 Crimes Act 1914 (Cth) ss 4M, 4N; Criminal Code Act 1995 (Cth) ss 7.1, 7.2; Criminal Code 2002 (ACT) ss 25, 26; Children (Criminal Proceedings) Act 1987 (NSW) s 5; Criminal Code Act 1983 (NT) ss 38(l)-(2); Criminal Code Act 1899 (Qld) ss 29(1 )-(2); Young Offenders Act 1993 (SA) s 5; Criminal Code Act 1924 (Tas) ss 18(1)—(2); Children, Youth and Families Act 2005 (Vic) s 344; Criminal Code Act Compilation Act 1913 (WA) s 29.
- 2 Children and Young People Act 2008 (ACT) ss 8, 69; Children (Criminal Proceedings) Act 1987 (NSW) s 3; Children, Youth and Families Act 2005 (Vic) sch 3; Youth Justice Act 2005 (NT) s 6; Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 (Qld); Young Offenders Act 1993 (SA) s 4; Youth Justice Act 1997 (Tas) s 3; Young Offenders Act 1994 (WA) s 3.
Australian Institute of Family Studies (AIFS) 2017a, ‘Age of consent laws’, Child, family, community Australia resource sheet, AIFS, Melbourne, Last modified July
2017, viewed 16 May 2019,
Australian Institute of Family Studies (AIFS) 2017b, ‘Mandatory reporting of child abuse and neglect’, Child, family, community Australia resource sheet, AIFS, Melbourne, viewed 20 December 2017,
Australian Institute of Health and Welfare 2019, Child Protection Australia 2017-
2018. A1HW, Canberra.
Blackley, R & Bartels, L 2018, ‘Sentencing and treatment ofjuvenile sex offenders in Australia’, Trends & Issues in Crime and Criminal Justice, no. 555, Australian Institute of Criminology, Canberra, viewed 14 January 2020,
Boxall, H & Fuller, G 2016, ‘Brief review of contemporary sexual offence and child sexual abuse legislation in Australia: 2015 update’, Special report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian Institute of Criminology, Canberra.
Briggs, F 2012, Child Protection: The essential guide for teachers and other professionals whose work involves children, Jojo Publishing, Docklands, Victoria.
Cossins, A 2010, Alternative models for prosecuting child sex offences in Australia: Report of the National Child Sexual Assault Reform Committee, School of Law UNSW, Sydney.
Department for Education 2019, Protective practices for staff in their interactions with children and young people: Guidelines for staff working or volunteering in education and care settings, 2nd edn. Department for Education, South Australia.
Department for Education and Child Development 2013, Responding to problem sexual behaviour in children and young people: Guidelines for staff in education and care settings, Department for Education and Child Development, Catholic Education South Australia, Association of Independent Schools of South Australia, Adelaide.
Eastwood, C 2003, The experiences of child complainants of sexual abuse in the criminal justice system. Trends & issues in crime and criminal justice no. 250, Australian Institute of Criminology, Canberra,
Evertsz, J & Miller, R 2012, Children with problem sexual behaviour and their families, Victorian Department of Human Services, Melbourne.
Hackett, S 2011, ‘Children and young people with harmful sexual behaviors’, in C Barter and D Berridge (eds), Children behaving badly? Peer violence between children and young people, John Wiley & Sons, Chichester, pp. 121-135.
Higgins, D & Kaspiew, R 2011, Child protection and family law, joining the dots, National Child Protection Clearinghouse Issues Paper Number 34, AIFS, Melbourne.
McCallum, F 2000, The effectiveness of training as professional development: Teachers as mandated notifiers of child abuse and neglect, University of South Australia Thesis Collection, Adelaide.
Mclnnes, E 2003, ‘Parental alienation syndrome: A paradigm for child abuse’, in Child sexual abuse: Justice response or alternative resolution conference, Australian Institute of Criminology, Adelaide.
Mclnnes, E 2014, ‘Madness in family law: Mothers’ mental health in the Australian family law system’, Psychiatry, psychology and law, vol. 21, no. 1, pp. 78-91,
Peterson, C 2010, Looking forward through the lifespan: Developmental psychology, 5th edn, Pearson Australia, Frenchs Forest.
Rendell, K, Rathus, Z & Lynch, A 2000, An unacceptable risk: A report on child contact arrangements where there is violence in the family, Women’s Legal Service, Brisbane.
Richards, K 2011, ‘What makes juvenile offenders different from adult offenders?’, Trends & issues in crime and criminal justice, no. 409, Australian Institute of Criminology, Canberra, viewed 14 January 2020,
Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) 2017b, Identifying and disclosing child sexual abuse: Volume 4, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney.
Shlonsky, A, Albers, B, Tolliday, D, Wilson, S, Norvell, J & Kissinger, L 2017, Rapid evidence assessment: Current best evidence in the therapeutic treatment of children with problem or harmful sexual behaviours, and children who have sexually offended, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney.
Wundersitz, J 2003, ‘Child victims of sexual offences: Tracking from police incident report to finalisation in Court', in Child sexual abuse: Justice response or alternative resolution conference, Australian Institute of Criminology, Adelaide.