The Royal Commission into Institutional Responses to Child Sexual Abuse (Commission) has released a report that examines criminal sentencing laws and practices in Australia. The 295 page report entitled Sentencing for Child Sexual Abuse in Institutional Contexts (Report), is the Commission’s first major research report published as part of its work on criminal justice.

The Report focuses on the nature of organisational responsibility for institutional child sexual abuse and criminal offences that should be, in the Commission’s opinion, introduced to target institutional failures. The Report also discusses the introduction of non-traditional sanctions for organisations, such as enforceable undertakings which would include compulsory compliance programs for organisations found guilty of child sexual abuse offences.

As regular readers of School Governance would know, the importance of implementing a robust compliance program cannot be underestimated, especially when it comes to ensuring that a school complies with relevant laws, and contrary to the proposals of the Commission, a compliance program should be implemented as a pro-active measure to reduce the risk of liability arising, as opposed to being adopted in response to conduct that could have been prevented.

The Commission’s research findings

In examining how tort law, which is primarily focused on compensating victims, and criminal law, an area aimed at attributing responsibility, interact with one another the Commission identified numerous gaps in the current legal system that render it insufficient for the task of holding organisations to account.

The Report’s key findings, based on research conducted for the Report, included:

• that offenders who are convicted of child sexual abuse offences where the child was under the care, supervision or authority of the offender, either directly or as a member of an organisation, often attract harsher sentences;
• there are significant delays between committing an offence and the prosecution, conviction and sentencing that are due in part to uncertainty and a lack of practicality in sentencing principles and practices;
• that the focus of the criminal law system on attributing responsibility to various individuals fails to account for organisational culpability; and
• that a number of possible new offences relating to organisational criminal liability for institutional child sexual abuse should be considered.

The Report notes that if institutions or organisations are directly or indirectly responsible for criminal behaviour such as child sexual abuse, then the law should hold them to account. Historically, however, attempts to ascribe criminal responsibility to organisations have been difficult. And given that an organisation or institution cannot be imprisoned, the Report examines other types of criminal sanctions that could be introduced to achieve the objectives of criminal punishment that normally apply to individuals, being retribution, denunciation and deterrence.

There are many ways of holding organisations to account, but the basic principle advocated in the Report is that an organisation should be held criminally responsible for the creation, management and response to risk when it has materialised in harm to a child.

The proposed offences

The three proposed offences focus on the organisations’ duty to ensure that reasonable care is taken by those associated with it, as well at its own duty of care. The proposed offences are as follows:

1. Where a person associated with an organisation has been convicted of an offence of child sexual assault and the organisation has:

• provided inadequate corporate management, control or supervision of the conduct of the person; or
• has failed to provide adequate systems for conveying relevant information to the person,

that organisation will be guilty of the offence of permitting or causing a child sexual assault.

2. An organisation will commit an offence if:

• it exercises care, supervision or authority over a child; and
• a person associated with the organisation commits a sexual offence against that child; and
• the organisation was negligent as to whether that person would commit a sexual offence against such a child.

An organisation may be found negligent for failing to reduce or remove a risk, if that failure falls short of the reasonable standard of care. This proposed offence is an adoption of South Australian and Victorian ‘failure to protect’ legislation.

3. An organisation will commit an offence if:

• a person associated with the organisation is convicted of an offence of child sexual assault; and
• the organisation, or a high managerial agent of the organisation, recklessly authorised or permitted the commission of that offence by that person.

‘Authorisation or permission‘ occurs where:

• the managing body or agent expressly, tacitly, or impliedly authorises or permits the offence; or
• a corporate culture exists that tolerates, or leads to, the offence; or
• there was a failure to create and maintain a corporate culture that would not tolerate or lead to the offence.

A system of organisational criminal responsibility

The Report identifies three elements that are central to the development of a system that includes the above offences.

First, there must be a definition of ‘an organisation’ that is applicable to this area of law. The Commission identified the definition in section 49C of the Victorian Crimes Act 1958 (Crimes Act) (the new ‘Failure to protect’ provision)  as appropriate for the various types of entities investigated as part of the Commission’s Inquiries. That definition includes ‘an organisation that exercises care, supervision or authority over children, whether as part of its primary functions or otherwise, and includes a church, religious body and a school’.

Second, the Report identified the need for a further clarification of ‘persons for whom the organisation may be responsible’ than that which already exists in the various criminal laws that apply in the States and Territories. The Commission again relied on section 49C for guidance. In that section a ‘person associated with an organisation’ includes but is not limited to a person who is an officer, office holder, employee, manager, owner, volunteer, contractor or agent of the organisation but does not include a person solely because the person receives services from the organisation. The Commission believes that the section 49C definition is sufficiently detailed to replace the traditional notion of vicarious liability in criminal law to include persons relevant to child sexual abuse incidents.

Third, the Report proposes that for a comprehensive system of organisational responsibility, a range of non-traditional sanctions (beyond monetary fines) have to be developed. While punitive measures such as probation, injunctions, records of the conviction and adverse publicity may comprise a significant deterrent, the proposed changes to the law are aimed at prompting organisational change rather than isolated reform. These sanctions could include some form of court or government supervision, organisational change, or reparation to the community, such as probation orders, supervisory intervention orders, community service orders and enforceable undertakings.

Interestingly, the Report identifies the adoption of a compliance program as part of the above non-traditional sanctions, as a way to ensure that persons within an organisation are aware of their responsibilities and obligations in respect of contravening conduct once it has occurred. According to the Report ‘compliance programs may require that an organisation implement education and training programs, revise internal operations, appoint qualified staff or consultants, conduct risk assessments, and implement complaints handling systems and like programs.’

School Governance has featured various articles on all the features of a compliance program mentioned in the Report.

Looking ahead

The Commission’s Report champions the progress that some States and Territories, namely Victoria, have made in their child protection policies, but also reveals glaring gaps in our system of criminal law that have awarded organisations little-to-no blame in the past.

The proposed changes to law will allow courts to hold schools and churches liable as ‘organisations’ for the offences of those associated with it. The Report also includes defences to these proposed offences namely that an organisation can escape criminal liability by showing it has taken reasonable precautions to manage, control or supervise the conduct of persons associated with the organisation. As the Royal Commission charges on, it’s imperative that all schools consider the efficacy of their child protection policies and the implementation and training among their staff, as this may negate their future liability.

Schools should also be proactive in adopting or improving an existing compliance program, given the emphasis placed on this element of a good governance system by the Commission.