The new offences in section 229BB and 229BC of the Criminal Code Act 1899 (Qld) (the Criminal Code) commenced on 5 July 2021.
Under section 229BC of the Criminal Code, an offence is created for any adult who fails to disclose information that causes the adult to believe on reasonable grounds, or ought reasonably to cause the adult to believe, that a child sexual offence is being committed or has been committed against a child by another adult. Section 229BC(4) sets out a non-exhaustive list of reasonable excuses for the purposes of the offence.
QLS has noted that the explanatory notes indicate that the “offences do not override any privilege, including the privilege against self-incrimination or legal professional privilege”. Queensland Law Society acknowledges the common law principles that a provision will not abrogate legal professional privilege unless it does so by clear words or necessary implication.
While QLS supports the policy intention of the provision to protect vulnerable members of the community, it remains concerned about the unintended consequences arising from the mandatory reporting requirements introduced by the section. In particular, QLS is concerned about the potential impact on legal professional privilege and a solicitor’s obligations of confidentiality to their client, notwithstanding the explanatory notes. QLS raised these concerns in our submission to the Legal Affairs and Community Safety Committee on the Bill in January 2020.
Recently, QLS wrote to the Attorney-General to seek clarification about these unintended consequences of the new mandates. In our correspondence, QLS requested the Department of Justice and Attorney-General publish further guidance on the operation of these sections, particularly as to how they apply to legal practitioners with respect to both legal professional privilege and their duty to confidentiality to clients.
In her correspondence to QLS, Attorney-General Shannon Fentiman acknowledged QLS’s concerns about the impact of the offence upon confidentiality. However, the Attorney-General noted that these concerns had been weighed against the need to protect the most vulnerable members of our community from child sexual abuse, in light of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The Attorney-General has indicated that practitioners are to rely on the previously published material by the Department of Justice and Attorney-General for guidance on the application of the provisions to legal practitioners with respect to their duty of confidentiality which is available at qld.gov.au/protectchildren.
QLS has been advised that the Department of Justice and Attorney-General will monitor the operation of the new offences in section 229BB and 229BC of the Criminal Code to ensure that they are operating as intended. In recognition of the Government’s commitment to ensuring the offences are operating as intended, the Department will seek feedback from key stakeholders on the operation of the offences within 12 months of their commencement.