Addressing liability for institutional child abuse: NSW leads the way in state and territory responses to the Royal Commission

Recently, the Civil Liability Amendment (Institutional Child Abuse) Bill 2017 (the Bill) was introduced into the New South Wales Parliament by Shadow Attorney-General, Paul Lynch. It is a groundbreaking step by NSW to update their liability for institutional child abuse before the recommendations of the Royal Commission into Institutional Responses to Child Abuse (the Royal Commission) are handed down on 15 December 2017.  Although this is a private member’s bill, meaning that it does not have executive or full government support, it is still important as it would significantly change non-government schools duties if turned into law.

Redress and Civil Litigation Report of the Royal Commission

The Bill, according to the Explanatory Memorandum, was introduced in response to Recommendation 91 of the Redress and Civil Litigation Report (the Recommendation) – delivered by the Royal Commission on 14 September 2015 and discussed in our previous article.

In particular, Recommendation 91 suggests that states and territories introduce a non-delegable duty to make institutions liable for institutional child sexual abuse by any person associated with the institution. The Recommendation also includes a defence of the institution taking reasonable steps to prevent the abuse.

Provisions contained in the Bill

The Bill can be considered a significant development, in that, by proposing to introduce a new Part 13 into the Civil Liability Act 2002 (NSW), directly addressing liability of organisations for child abuse, NSW becomes only the second state after the Commonwealth (as discussed in our previous article) and Victoria (discussed in our Briefing Paper Victoria: 2017 Child Protection Update) to proactively address the preliminary recommendations of the Royal Commission.

The proposed new Part 13 contains some distinctive provisions including:

  • defining a relevant organisation as any entity that exercises care, supervision or authority over children
  • defining an “individual associated with a relevant organisation” as including officers, office holders, employees, owners, volunteers, contractors, religious leaders, ministers, members of religious organisations, and members of organisations where authority has been delegated
  • introduction of a non-delegable duty of care imposed on all relevant organisations to prevent the abuse of a child
  • introduction of a defence of taking reasonable precautions, proved by the relevant organisation on the balance of probabilities.

Clearly, non-government schools would be subject to a significant new duty of care if the Bill is passed.

Revolutionary approach suggesting something more?

We have previously reported on both the Catholic Church and Melbourne’s Yeshivah Orthodox Jewish Centre’s individual organisational responses to the recommendations of the Royal Commission; but NSW has been only the second state to follow the Commonwealth’s lead in proactively addressing the need for civil liability for institutional child abuse.

Like similar legislative trends in child protection in Australia, it may be the case that the NSW Bill (and Victorian Act amendments) could be precursors to a national harmonised response to liability for institutional child abuse.

Impact on schools

Schools should be aware of the impact of both the current proposed Commonwealth and NSW civil liability schemes, as well as the current Victorian scheme, for redress for institutional child abuse, particularly if there are any current cases of historical child sexual abuse and any current guidelines regarding compensation for child sexual abuse from their governing institutions.

Schools should also be keenly aware of the Royal Commission’s final reporting date of 15 December 2017 and expect a raft of child protection and other related changes in the new year across all jurisdictions in response.

Lauren Osbich is a Legal Research Consultant and School Governance reporter. She can be contacted here.

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