Addressing Liability for Institutional Child Abuse (Part One)
This is the first part of a two-part series exploring the responses from the states and territories to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, and the current legislative developments reinforcing the Royal Commission’s recommendations. Part One addresses the federal National Redress Scheme for Institutional Child Sexual Abuse and the Northern Territory consultation paper for implementing civil litigation reforms. Part Two addresses new legislation in the ACT and SA responding to limitation of actions and civil liability.
The upcoming assent of many state and territory acts, which enable the federal National Redress Scheme for Institutional Child Sexual Abuse, and a new “Civil Litigation Discussion Paper” in the Northern Territory (NT Discussion Paper), highlight a growing trend to remove limitation periods for child sexual abuse claims and reinforce institutional liability for any resulting claims in response to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).
Redress and Civil Litigation Report of the Royal Commission
The Royal Commission made 99 recommendations regarding options for redress in its initial consultation paper, the Redress and Civil Litigation Report (Report), released on 14 September 2015. As mentioned in our previous article, the Report estimated that the total cost of redress to survivors of child abuse nationally would be $4.378 billion. Recommendations 85-99 of the Report proposed reforms to limitation periods (85-88), the duties and liability of institutions (89-93), the identification of defendants (94), insurance (95) and model litigant principles (96-99).
The Report recommended that a national redress scheme or separate state and territory redress schemes should be created to facilitate access for survivors, with the ‘ideal position’ being the establishment of a single national scheme led by the Federal Government. The Report also recommended 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.
With the upcoming assents of the state and territory National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bills and the NT Discussion Paper (which deals with the duties and liability of institutions and the identification of defendants), Australia is beginning to legislatively address the recommendations from the Report.
Federal National Redress Scheme
The federal National Redress Scheme commenced on 1 July 2018 and will run for 10 years. It was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). The National Redress Scheme:
- acknowledges that many children were sexually abused in Australian institutions
- recognises the harm caused by this abuse
- holds institutions accountable for this abuse
- helps people who have experienced institutional child sexual abuse gain access to counselling and psychological services, a direct personal response, and a monetary payment.
As part of the National Redress Scheme, states and territories are required to adopt the federal law, and refer powers relating to child abuse to the federal government. So, far, the six states have come on board with enabling legislation, with the NT and the ACT not yet adopting enabling legislation. However, both territories have indicated their intention to come on board in previous media releases, and the NT Discussion Paper shows that the NT is acting in support of its intentions.
There has been much movement in state parliaments through September and the current state legislation (and status) is as follows:
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW) – Assented to and commenced on 23 May 2018
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Qld) – Awaiting assent as of 19 September 2018
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (SA) – Awaiting assent as of 18 September 2018
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (Tas) – Awaiting assent as of 20 September 2018
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic) – Assented to and commenced on 13 June 2018
- National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (WA) – Undergoing debate in the Legislative Council as at 13 September 2018.
There are also a number of non-government institutions that have indicated their intention to join the National Redress Scheme including the Catholic Church, the Anglican Church, the Uniting Church, the Salvation Army, the YMCA and Scouts Australia. For more information about other participating institutions, see the National Redress Scheme website.
Limitation Periods and Institutional Liability
States and territories have also legislated to respond to the Royal Commission’s other recommendations in the Report for removing limitation periods for child sexual abuse claims and reinforcing institutional liability. All these pieces of legislation achieve the two key aims, either separately or in a combined amendment. Most jurisdictions except for Western Australia have chosen to do this in two separate pieces of legislation e.g. there are two pieces of legislation for New South Wales, one amending the Limitation Act and one amending the Civil Liability Act. This is a similar approach to that proposed by the NT in the NT Discussion Paper.
As mentioned in our previous article, this trend was established by the following pieces of legislation introduced by the states and territories:
Limitations on Actions Relating to Child Abuse
- Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) – Assented to on 21 April 2015
- Limitation Amendment (Child Abuse) Act 2016 (NSW) – Assented to on 17 March 2016
- Limitation Amendment (Child Abuse) Act 2017 (NT) – Assented to on 31 May 2017
- Limitation Amendment Bill 2017 (Tas) – Assented to on 20 December 2017
- Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) – Assented to on 11 November 2016.
Parameters for Institutional Liability
- Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) – Assented to on 27 March 2017
- Civil Liability (Institutional Child Abuse) Amendment Bill 2017 (Qld) – Introduced on 10 October 2017
- Justice and Community Safety Legislation Amendment Act 2016 (No 2) (ACT) – Assented to on 25 August 2016
- Civil Liability Amendment (Institutional Child Abuse) Bill 2018 (NSW) – Introduced on 25 September 2018.
- Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) – Assented to on 19 April 2018.
The NT Discussion Paper has also been followed by two key pieces of legislation in both SA and the ACT, which are discussed in Part 2 of this series.
NT Civil Litigation Discussion Paper
On 22 September 2018, via media release, the NT Government released the NT Discussion Paper focusing on the Royal Commission’s recommendations regarding the duties and liability of institutions and the identification of defendants. The NT Discussion Paper represents the NT’s first steps towards following a significant trend around Australia of governments responding to the Royal Commission’s recommendations for removing limitation periods for child sexual abuse claims and reinforcing institutional liability.
The NT Discussion Paper has suggested following similar legislative provisions to those introduced in Victoria, namely, two key pieces of legislation. The first piece of legislation has already been introduced i.e. the Limitation Amendment (Child Abuse) Act 2017 (NT) which was assented to on 31 May 2017 and focused on removing the limitation periods for child sexual abuse claims in the NT. The proposed reforms in the NT Discussion Paper will address the second issue of institutional liability for child sexual abuse.
The proposed reforms will make it easier for survivors of child sexual abuse to sue for damages by:
- establishing a statutory duty of care requiring that relevant institutions take reasonable care to prevent the abuse of children under their care, supervision and control
- implementing changes so that the duty of care applies even in circumstances where an institution has delegated its functions or services to a third party
- changing the law to ensure survivors seeking damages for child sexual abuse against institutions associated with a property trust will be able to sue an entity with sufficient assets to meet their claim. Under the proposed changes, if an institution fails to nominate a proper defendant with sufficient assets to meet the claim, the property trust will be named as the proper defendant.
Non-Delegable Duty of Care
The Royal Commission favoured the imposition, via legislation, of a non-delegable duty of care for all institutional child sexual abuse given the level of care, supervision and control that some institutions may have over children. It did so on the basis that a non-delegable duty of care represented the imposition of strict liability. It included with this a reverse onus on the institution to prove that child sexual abuse did not occur.
The NT Discussion Paper asks for public submissions in relation to the types of institutions that should be subject to this non-delegable duty of care. It is proposed that the reverse onus duty should apply to all institutions, including not-for-profit and volunteer organisations, as well as organisations that administer foster or kinship care services. It is also proposed that institutional liability should extend to the actions of “all persons associated with the institution”. The NT Discussion Paper asks for public submissions in relation to potential limitations in relation to who is considered an “associate” of an institution and whether liability should extend to acts of abuse committed by children under the care, control or supervision of institutions.
Identifying a Proper Defendant
One of the major impediments to claims for damages by survivors in respect of institutional child sexual abuse is identifying a legal entity who is capable of being sued so that it can be named as a defendant, and ensuring that the institution holds sufficient assets to meet any liability from the claim. The leading Australian case on the issue of the identification of the “proper defendant” is Trustees of the Roman Catholic Church v Ellis and Anor  NSWCA 117. This case resulted in the “Ellis defence”, where Church assets could not be subject to orders for compensation for child abuse crimes endured within the Church, because Church trustees could not be held to account for the crimes of individuals. Victoria has since legislated directly against this legal defence under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018, as mentioned in our previous article.
The NT Discussion Paper asks for public submissions in relation to the proposed reforms to introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of child sexual abuse where the institution is associated with a property trust, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability, the property trust will be the proper defendant to the litigation. This would mean that any liability of the institution with which the property trust is associated arising from the proceedings can be met from the assets of the trust.
Impact on Schools
In light of the legislative reform trend around the nation in relation to institutional liability for child sexual abuse, schools should be aware of the impact of both current and proposed legislation in their state or territory. This is particularly important for those schools that may be aware of current cases of historical child sexual abuse and any current guidelines regarding compensation for child sexual abuse from their governing institutions.
About the Author
Lauren Osbich is a Legal Research Consultant and School Governance reporter. She can be contacted here.