The Victorian Government has passed an amendment to the Wrongs Act 1958 (Vic) (Wrongs Act) that reverses the onus of proof so that if faced with a negligence action, all child-related organisations will need to prove they took reasonable precautions to prevent abuse.

The Wrongs Amendment (Organisational Child Abuse) Act 2016 (Vic) (the Act) was passed in late March and is due to commence on 1 July 2017 at the latest. Victorian Attorney-General Martin Pakula has said that this new legislation "will deliver on key recommendations of the Betrayal of Trust Report."

We reported on the Act when it was introduced as a Bill in November 2016, see Proposed new Victorian laws: Does your school take reasonable precautions to prevent abuse?

Broadening your duty of care

The Act broadens a school’s duty of care owed to its students by amending the Wrongs Act to include new section 91 "Liability of organisations." Section 91 imposes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.

Essentially, the Act now requires organisations including schools, whose purpose or work involves the exercise of care, supervision or authority over children, to be proactive and preventative in their child protection strategies to take reasonable precautions to prevent the abuse of a student by an individual associated with the school.

A reasonable precaution is not defined in the Act, but it does state that reasonable precautions will vary depending on factors including:

• the nature of relevant organisation;
• the resources reasonable available to the organisation;
• the relationship between the organisation and the child;
• whether the organisation had delegated care, supervision or authority over the child to another organisation; and
• the role in the organisation of the perpetrator of the abuse.

An individual associated with the school can include:

• an officer or office holder
• an employee;
• the school’s proprietor;
• a volunteer;
• a contractor;
• a minister of religion;
• a religious leader; and
• any delegate of any of the aforementioned individuals.

From the commencement of the Act, where abuse has been proven to have occurred and committed by an individual associated with a school, the school will have to provide proof that they took reasonable precautions to prevent that abuse.

How can a school provide this type of evidence?

Evidencing child protection strategies and culture is not always an easy feat. The passing of this amending Act will require schools to shift more focus to their child protection record keeping practices than ever before. For example, reasonable precautions to prevent abuse may include staff child protection training, a communicated and regularly reviewed code of conduct and child protection policy, and internal investigations and disciplinary actions taken in response to staff misconduct. However, without paper evidence that these measures were taken, the school may fail to meet the onus of proof now required under the Wrongs Act.

Never has it been so critical that schools not only have developed and effectively implemented strong child protection strategies, policies, procedures and work systems, but also can provide paper evidence of doing so.