Section 38 of the Lukautim Pikinini Act 2015 creates two different duties — one permissive, one mandatory.
Section 38(1) and (2) — the general provision
(1) A person who believes, on reasonable grounds, that a child is in need of protection may notify the Office for Child and Family Services.
(2) Apart from reporting under subsection (1), such person should take whatever steps necessary to assist the child.
A reporter need not have proof, and need not have investigated. The standard is a belief on reasonable grounds — something a reasonable person in the reporter’s position could hold on the information available.
Subsection (2) adds an expectation beyond reporting: take whatever steps are necessary to assist the child. Reporting and walking away is not what the section contemplates.
Sections 38(3) and (4) — the mandatory duty
Notwithstanding anything in any other law, a person referred to in subsection (4) who (a) performs professional duties with respect to a child; and (b) in the course of that person’s professional, official, or community duties, has reason to believe that the child is in need of protection, shall immediately report the matter to the Office.
(a) a health care professional, psychologist, teacher, school principal, social worker, family counsellor, member of the clergy, lawyer, police officer, community based corrections officer, juvenile justice officer, correctional services officer, community development officer or community development office worker;
(b) an operator or employee of an early childhood care and development centre.
These six words override professional confidentiality. A doctor’s duty of confidence, a lawyer’s obligations to a client, a minister’s pastoral confidences — none of them excuses a failure to report a child in need of protection.
The list is expressly not exhaustive. Anyone performing professional duties with respect to a child may be within subsection (3).
And the report must be immediate. There is no period for making enquiries first.
Section 38(5) — the consequence
The Office may institute a civil proceeding against a professional for failure to report.
Section 38(5) creates a civil remedy, not an offence. That is a deliberate choice: the object is compliance, and a professional body or employer is often better placed than a criminal court to respond.
Note that section 79 separately makes it an offence to fail to discharge duties under the Act, and that a professional’s own regulator may take disciplinary action independently.
Sections 39 and 41 — the reporter is protected
A person who notifies the Office under section 38 shall not be held to have breached any professional etiquette or code, or to have departed from any accepted form of professional conduct, and does not incur civil or criminal liability in respect of the notification.
The identity of the person who notifies the Office shall not be disclosed to any other person without the person’s consent or leave of the Court.
| Provision | Effect |
|---|---|
| s 38(1) | Anyone may report on reasonable grounds |
| s 38(3) | Listed professionals must report immediately |
| s 38(5) | Civil proceedings for a professional’s failure |
| s 39 | No civil or criminal liability; no breach of professional code |
| s 40 | Malicious reports are an offence |
| s 41 | Reporter’s identity protected |
| s 42 | Investigation by the Office |
The two obstacles to reporting are fear of being sued and fear of being identified. Section 39 removes the first; section 41 removes the second.
In a small community — where the reporter may be the child’s teacher, and the person reported a neighbour or relative — anonymity is what makes the mandatory duty workable in practice.
The protection in section 41 is not absolute: identity may be disclosed with the reporter’s consent, or by leave of the Court. That reservation exists because in rare cases the source of an allegation may be genuinely material to a fair hearing.
A report is made to the Office for Child and Family Services, which under section 42 may then conduct such investigation as it considers necessary. Where the danger is immediate, the emergency powers in section 46 allow a police officer or Child Protection Officer to take charge of the child without waiting for anything.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 12–15, 35–42, 46, 79
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.