Further information about the reportable conduct scheme, including a full list of organisations covered by the scheme, is available on the websites of the:. The Working with Children Check External link is one of the safety measures organisations need to put in place to protect children from sexual and physical harm. A list of additional resources can be found on the website for Commission for Children and Young People, including:.
A new 'organisational duty of care to prevent child abuse' applies to any organisation that exercises care, supervision or authority over children in Victoria. This duty of care creates a presumption of liability, such that certain organisations will need to prove that they took "reasonable precautions" to prevent child abuse if they are defending a legal claim.
The duty does not change existing duties that schools and teachers already have, but instead reinforces the importance of ensuring that schools take reasonable precautions to minimise the risk of child abuse.
The child safe standards the standards are compulsory minimum requirements to create and maintain a child safe environment and better protect children from the risks of abuse and apply to organisations that provide services for children. The standards aim to drive cultural change in organisations so that protecting children from abuse is embedded in everyday thinking and practice. Further information about the standards for community service organisations can be found on the Department of Families, Fairness and Housing website on their Child safe standards External link page.
Departmentally-funded organisations are still required to comply with all terms and conditions set out in their service and funding agreements, including compliance with the Human Services standards, as relevant, and safety screening checks such as:.
Further information about the child safe standards for schools, early childhood services and other education providers is available from the websites of the Department of Education and Training External link and the Victorian Registration and Qualifications Authority External link. Fact sheets and other resources to assist approved providers and education and care services to comply with the requirements of the National Quality Framework External link are also available from the Department of Education and Training.
As for community service organisations, departmentally-funded organisations education providers are still required to comply with all terms and conditions set out in their service and funding agreements.
Get Libre Office External link. Licences and certificates Births, deaths and marriages External link Births, deaths and marriages External link Certificates and registries for births, deaths and relationships, and family history resources Working with children External link Working with children External link Checks for people in paid or voluntary child-related work Business licensing Business licensing Licensing, registration and regulation of businesses and industries in Victoria.
Equal opportunity and human rights External link Equal opportunity and human rights External link Equal opportunity, sexual harassment, racial and religious vilification, and related dispute resolution Aboriginal Justice Agreement External link Aboriginal Justice Agreement External link The Aboriginal Justice Agreement is a partnership between the Victorian Aboriginal community and the Victorian Government.
In its fourth phase - Burra Lotjpa Dunguludja - was launched Freedom of information Freedom of information How to request access to documents held by the department's business units Native title Native title History and legislation behind the recognition and protection of native title in Victoria Adoption Adoption Adoption permanently transfers the parental rights and responsibilities of natural parents over to adoptive parents Top tasks Visit the Victorian Aboriginal Justice Agreement website External link Get advice on topics affecting people with a disability External link Find information about ending a residential lease or tenancy External link Making and handling protected disclosures.
Home Safer communities Protecting children and families Failure to protect: a new criminal offence to protect children from sexual abuse Failure to protect: a new criminal offence to protect children from sexual abuse. What is the offence of failing to protect a child from a sexual offence? The offence provides that a person who: by reason of the position he or she occupies within a relevant organisation, has the power or responsibility to reduce or remove a substantial risk that a relevant child will become the victim of a sexual offence committed by a person of or over the age of 18 years who is associated with the relevant organisation; and knows that there is a substantial risk that the person will commit a sexual offence against a relevant child — must not negligently fail to reduce or remove that risk.
What is a 'relevant organisation'? Relevant organisations include, but are not limited to: churches religious bodies education and care services such as childcare centres, family day care services, kindergartens and outside school hours care services licensed children's services such as occasional care services schools and other educational institutions organisations that provide accommodation to children and young people, such as boarding schools and student hostels out-of-home care services community service organisations providing services for children hospitals and other health services government agencies or departments providing services for children municipal councils for example those that deliver Maternal and Child Health services sporting groups youth organisations charities and benevolent organisations providing services for children.
Who is a person in authority in an organisation? Who is a relevant child? Who is a 'person associated with' an organisation? What is a 'substantial risk'? These include: the likelihood or probability that the child will become the victim of a sexual offence the nature of the relationship between a child and the adult who may pose a risk to the child the background of the adult who may pose a risk to the child, including any past or alleged misconduct any vulnerabilities particular to a child which may increase the likelihood that they may become the victim of a sexual offence any other relevant fact which may indicate a substantial risk of a sexual offence being committed against a child.
When does a person 'know' there is a risk of child sexual abuse? When does a person negligently fail to reduce or remove a substantial risk? Does this criminalise mistakes made by adults who are caring for or working to protect children? What should a person in authority do to reduce or remove the risk of child sexual abuse posed by an adult associated with their organisation? For example: A current employee who is known to pose a risk of sexual abuse to children in the organisation should be immediately removed from contact with children and reported to appropriate authorities and investigated.
A community member who is known to pose a risk of sexual abuse to children should not be allowed to volunteer in a role that involves direct contact with children at the organisation. A parent who is known to pose a risk of sexual abuse to children in a school should not be allowed to attend overnight school camps as a parent helper. How can you improve child safety in your organisation, and remove or reduce the risk of harm? These may include: Adopting a child safety policy that outlines a commitment to child safety and provides guidance on how to create a child safe environment.
Enforcing a code of conduct that sets clear expectations about appropriate behaviour towards children and obligations for reporting a breach of the code. Ensuring all new staff and volunteers are appropriately screened, including reference checks, before commencing employment with the organisation in addition to Working with Children Checks or Victorian Institute of Teaching registration.
Providing training to staff in prevention, identification and response to child safety risks, including reporting requirements and procedures The Reportable Conduct Scheme commenced implementation on 1 July and requires organisations that have a high level of responsibility for children to report allegations of child abuse and how they have been investigated and managed centrally to the Commission for Children and Young People.
Does the offence criminalise members of the public who fail to protect a child from a risk of sexual abuse? How does the failure to protect offence interact with mandatory reporting obligations? What is the penalty for failing to protect a child? How do I contact Victoria Police? Appendix A — Reportable conduct scheme, Working with Children Checks and organisational duty of care Reportable conduct scheme A Victorian reportable conduct scheme will commence operation on 1 July , and it will be administered by the Commission for Children and Young People.
Further information about the reportable conduct scheme, including a full list of organisations covered by the scheme, is available on the websites of the: Commission for Children and Young People External link Department of Families, Fairness and Housing External link Working with Children Checks The Working with Children Check External link is one of the safety measures organisations need to put in place to protect children from sexual and physical harm.
In many cases the investigating police officers are unfamiliar with this area of the criminal law and therefore seek early advice from CPS concerning the elements of GNM and whether the evidential test could be met in any individual case. This early advice enables the police in some cases to be able to make the decision to close their investigation at an early stage where the evidential test could not be met. There will most usually be a pathologist report and expert evidence will be required concerning whether the actions or omissions of the medical professional caused the victim's death.
If causation can be proved, medical evidence will be needed to provide an opinion on how far below the standard of the reasonable medical professional the conduct fell. Sometimes the advice of several experts is required on different aspects of the case. While considerable weight will be attached to the expert evidence, which will inform and assist the making of the decision in any case, the decision as to prosecution and whether the evidential test is met is ultimately one for the independent prosecutor.
Experts are required to have suitable and relevant expertise in their area of practice and will make a declaration as to their independence and expertise when they provide their reports. The prosecutor will provide terms of reference for the expert outlining the elements of the offence of GNM and will address any aspects of the individual case that require particular expert advice. In a case where the prosecutor considers that the evidence indicates that the threshold for a prosecution of GNM may be reached, senior counsel will be instructed to advise.
Notes will be taken of any such meeting and any information which meets the disclosure test will be provided to the defence if a prosecution is commenced. All review decisions in cases of gross negligence manslaughter are made by specialist prosecutors or senior specialist prosecutors in Special Crime Division and require the approval of the Head of the relevant Unit and final authorisation by the Deputy Head of Division.
The factors that are relevant to take into account for the review of an allegation of medical manslaughter or any GNM case are many and varied and it is not possible to be exhaustive about the factors that may be considered in any given case.
However, some factors which often have a bearing on culpability in these cases are possible to identify. The Misra test is important in any decision on grossness and mistakes, even very serious mistakes, will not be sufficient to pass the evidential test for grossness. Where there is a course of conduct by an individual and a series of serious breaches the test of grossness may be more likely to be met. The deliberate overriding or ignoring of systems which are designed to be safe and have proven to be safe may be evidence of a serious breach of duty.
Similarly, ignoring of warnings from other members of staff or when an individual acts against the advice of other members of the team alerting them to serious dangers or risk. In some cases the fatal incident may be the result of actions or inactions by several medical professionals and it is not possible to identify any one individual who has committed a gross breach of duty.
GNM is an individual offence and it is not possible to aggregate the conduct of several medical professionals. In evaluating the evidential test for grossness, the conduct of the medical professional will always be considered against the background of all the relevant circumstances in which that individual was working.
The relevant working conditions and factors of which the investigation has evidence will be provided to the appropriate expert for information and will be considered in the review of the evidential test by the prosecutor. Gross negligence manslaughter is a common law offence and carries a maximum of life imprisonment.
The sentencing guidelines can be found here. The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases. This guidance assists our prosecutors when they are making decisions about cases.
It is regularly updated to reflect changes in law and practice. Help us to improve our website; let us know what you think by taking our short survey. Contrast Switch to colour theme Switch to blue theme Switch to high visibility theme Switch to soft theme. Search for Search for. Top menu Careers Contact. Gross negligence manslaughter is a common law offence. The offence is indictable only. The circumstances in which this offence may fall to be considered are almost infinitely variable but the most frequently encountered occur in the following contexts: Death following medical treatment or care; the offence can be committed by any healthcare professional, including but not exclusively doctors, nurses, pharmacists, and ambulance personnel; Deaths in the workplace the offence can be committed by anyone who is connected in some way to a workplace of any nature.
The context is wide ranging but can include offices, factories, ships, airports, aeroplanes, construction sites, oil rigs, farms, schools and sporting grounds. The deceased victims may be employees, contractors, sub-contractors, and members of the public visiting or passing by the workplace when a fatal incident happens.
Death in custody - a death in custody is a generic term referring to deaths of those in the custody of the State. In this context the offence can be committed by police or prison officers, dedicated detention and other custody assistants, and by healthcare professionals who are responsible for the care of those detained in a custodial setting. The Law The ingredients of the offence were authoritatively set out in the leading case of R v Adomako [] 1 AC in which Lord Mackay of Clashfern LC at page said the following: "In my opinion, the law as stated in these two authorities Bateman 19 Cr.
Whether the damage was foreseeable; Whether the claimant was in an appropriate position of proximity to the defendant; and Whether it was fair and just to impose liability on the defendant.
Breach of duty The ordinary principles of the law of negligence apply to determine whether the defendant was in breach of a duty of care towards the victim. Causation The breach of duty must cause the death. Langley J said: "If you are not sure that [X] would have survived at all, either however well he had been treated or - because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter.
Grossness In determining whether sufficient evidence exists for a realistic prospect of conviction, prosecutors need to also consider how the courts have determined the degree of negligence required for the offence. The prosecution must prove the following two elements: a that the circumstances were such that a reasonably prudent person in the defendant's position would have foreseen a serious and obvious risk of death arising from the defendant's act or omission; b that the breach of duty was, in all the circumstances, so reprehensible and fell so far below the standards to be expected of a person in the defendant's position with his qualifications, experience and responsibilities that it amounted to a crime.
The serious and obvious risk of death At the time of the breach, the jury must conclude that a reasonably prudent person, undertaking the role that the accused undertook, would have foreseen a serious and obvious risk of death, and not merely a risk of injury, even serious injury. The meaning of serious was considered by the Court of Appeal in R v Rudling [] EWCA "a serious risk of death is not to be equated with an inability to eliminate a possibility. The court usefully summarised the main principles applicable to GNM as follows: In the circumstances, the relevant principles in relation to cases of gross negligence manslaughter can be summarised as follows: 1.
There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence: a the defendant owed an existing duty of care to the victim; b the defendant negligently breached that duty of care; c it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death; d the breach of that duty caused the death of the victim; e the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
A recognisable risk of something serious is not the same as a recognisable risk of death. The court stated further: Reverting to the question posed at the commencement of this judgment, we conclude that, in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty.
Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a serious and obvious risk of death at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death.
For these reasons, this appeal is allowed and the conviction is quashed. See also the CA judgment in Winterton [] EWCA Crim Criminality The foundation of this offence is that the degree of negligence needs to be very high before the conduct can be considered to be a crime. These are the types of offences that would be automatically punishable under the law of England and Wales.
The confusion arises where someone fails to act in a particular situation. These failures to act are called omissions. If a person in hospital is being kept alive by a drip feed, the physical withdrawal of this feed would amount to an illegal action; the failure to replace an empty drip feed would amount to a failure to act, an omission.
Generally there is no criminal liability for failing to act in a certain situation. In certain circumstances, the law expressly states that a failure to act will result in criminal liability.
This constitutes an exception to the general rule that there is no liability for a failure to act. For example, under s 6 of the Road Traffic Act , it is a criminal offence for a person, without reasonable excuse, to fail to provide a specimen of breath when required to do so. Where there is a special relationship between the victim and the person who failed to act, criminal liability can arise as a result of the omission. Examples of the kinds of relationships that presume a voluntary presumption of responsibility to care for or protect the other person includes:.
All these types of relationship impose some kind of duty on each other, and therefore a failure to act and prevent an action which leads to one of the parties becoming a victim of some sort of crime will attach a criminal liability.
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