Mandatory reporting legislation in Australia
The Government of South Australia led the way when, in 1968, it introduced mandatory reporting legislation requiring doctors to report evidence of child abuse. This was a controversial step given that medical professionals had an obligation to maintain patient confidentiality. In Victoria, the Birrell brothers noted that GPs did not report abuse because they wanted to avoid involvement in time-consuming court proceedings. They also feared that, if patients were reported, their businesses might suffer, especially in country towns. Without legislation to protect them, they were also unwilling to risk civil action if the diagnosis was wrong102.
In 1977, the South Australian Government extended the list of mandated reporters to include all those whose work involved children, including pharmacists and dentists. Initially teachers had to make reports of abuse and neglect to school managers but at that time, few were educated in matters relating to child abuse and some failed to pass reports to child protection services. The law was quickly changed to ensure that mandated persons were responsible for making their own reports directly to state child protection services. Volunteers in child-related activities and even clergy were subsequently added to the list of mandated reporters. There are financial penalties for those who fail to make reports but, nationwide, these have rarely been imposed.
Penalties should be viewed positively. When managers deter reporting with:
“It’s that kind of family. Reporting won’t make any difference”
“The department’s useless. Reporting is a waste of time”
“I don’t want parents coming after me. He’s got a foul temper”
“Don’t rock boats or make waves. I’m retiring next year”
“The department won’t like it”
Concerned staff in most jurisdictions can say, “If I don’t report it, I can be fined several thousand dollars and we could be sued by the victim in years to come”.
In 2000, a former primary school student successfully sued the State of Victoria for the failure of her school principal and deputy to report a reasonable suspicion of sexual abuse (AB v Victoria 2000). It is significant that this action referred to negligence to report abuse before the introduction of reporting legislation. The victim was awarded $494,000 in damages on the grounds that staff negligence enabled the step-father to rape the child for another year.
Australian states have different and sometimes illogical legislative requirements for reporting child abuse. Readers are urged to check what the requirements are in their state or territory. Western Australia was the last to introduce mandatory reporting legislation but only for child sexual abuse (January 1st 2009). The list of mandated reporters is limited to doctors, nurses, teachers, police and midwives. Previously, licensed providers of child care or before-and-after school care were required to make reports while Education Department regulations required teachers to make reports to principals who might pass them on to line managers who might pass them to other bureaucrats and, along the way, someone decided whether the report should be passed on to the child protection service. Not surprisingly, reports disappeared en route. Under the 2009 legislation, West Australian professionals who fail to report sexual abuse to the Department for Child Protection can be fined $6,000. Western Australia’s legislation differs from other states in that verbal reports have to be followed up in writing and copies of reports are sent to police. Failure to write a report could result in a $3,000 fine. This could of course inhibit reporting by people with poor literacy skills.
The Australian Capital Territory introduced mandatory reporting legislation in 1986 for teachers and doctors but this was not enacted until 2000. Tasmania included teachers in 1997 but the legislation was not activated until 2000. Queensland introduced partial provisions in 2004 and the Premier and government resisted pressures to widen coverage. Under section 81 of the Child Care Act 2002, child care licensees must report harm to children if the harm was caused when in the care of a carer of the service, if a child has died or suffered a serious injury, or the licensee becomes aware, or reasonably suspects, that harm has been caused to a child; and the death or serious injury happened, or the harm was caused or is suspected to have been caused, while a carer in the service was (i) providing care to the child (whether or not the care provided to the child was child care); and (ii) providing child care in the course of the service.
So far as schools are concerned, the Education (General Provisions) Act 1989 (Qld) requires all school staff (including but not limited to teachers) to report knowledge or reasonable suspicions that a student under 18 years of age attending the school has been sexually abused by someone else who is an employee of the school. In other words, if a child reports incest to a teacher, the teacher is under no legal obligation to report it. This bizarre situation was defended by the then Minister for Education and, later, Premier of Queensland Anna Bligh103,104.
While all American and Canadian states introduced mandatory reporting legislation in the late 1970s, Britain and New Zealand resisted it. Successive New Zealand government ministers responsible for child welfare told the author that mandatory reporting legislation would not be introduced because reports would increase if reporting became compulsory; social workers were already over-stretched. In other words, “We know there are many more abused children out there but we are not prepared to provide the resources to intervene.”
The Australian Institute of Health and Welfare Annual Report, Child Protection (published on the internet) shows that teachers are the second most frequent professional reporters after police. However there has been no large-scale empirical research to show how many teachers are avoiding their legal obligations and what happens after reports are made.
Readers should be aware that failure to make a report of abuse can have grave legal personal and financial consequences years later when victims realise that those responsible for their safety were negligent. They may then decide to take civil action for compensation.
Defining child abuse in a multicultural society
Different cultures have different ideas about what constitutes abuse; what is regarded as normal adult behaviour in one context may be viewed as abusive in others. If we lack a cross-cultural perspective, we are likely to view our own practices as the “right” ones but if we value cultural interests more than the humane treatment of children, we may ignore evidence of harm and justify lower standards of care for children from other cultures.
Three levels of abuse have been identified:
Practices acceptable in the culture with which the parents associate but constitute a crime in the country where they live. The most obvious of these is female circumcision practised in some Muslim communities
Individual abuse or neglect that exceeds the standards set by the abuser’s own community. Beating is in this category
Societal conditions beyond the control of the parent such as homelessness or a lack of sanitation contributing to neglect
Arguments persist as to when child protection services should step in. Should we ignore the flouting of child labour laws because in the migrant family’s culture there is the expectation that children will contribute to family income? Should we ignore 12 year olds being responsible for the care of younger siblings on the grounds that this was normal practice in their parents’ homeland and their parents have a restaurant to run? Should we ignore child brides being given to old men to pay off parents’ debts? Should we turn a blind eye to under-age girls being taken overseas to marry men they don’t know? The internet is awash with evidence of children being involved in arranged marriages from the age of eight.
In their report Culture: No excuse, the New South Wales Child Protection Council made it very clear that we must never excuse or ignore evidence of child abuse or neglect on cultural grounds. The Council noted that physical abuse is most likely to be ignored