Why Schools Cannot Wipe the Slate Clean on Child Protection

22 November 2018

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) highlighted that historically there have been inadequate and inconsistent approaches to child safety in many organisations. The Royal Commission made various recommendations in relation to what institutions and governments should do to deal with historical child abuse, including ensuring justice through the provision of institutional redress. Refer to our previous School Governance article.

More than 80 of the recommendations of the Royal Commission related to a national redress scheme for survivors, to which all the states and territories have now committed, along with the Catholic, Anglican and Uniting churches, and other groups such as Scouts Australia and the Salvation Army. The National Redress Scheme, as stated in our previous article, commenced on 1 July 2018 and will run for 10 years. It was established to allow survivors access to a direct personal response, psychological counselling and compensation of up to $150,000.

Further, legislatures around the country have recently introduced amendments to respond to the Royal Commission, including by introducing new duties for schools and their staff to:

  • act to protect children and young people from substantial risks of sexual offences being committed against them by persons associated with the school and/or in positions of authority. For example, a Bill is currently before the ACT Legislative Assembly that will amend the Crimes Act 1900 (ACT) to impose this duty on schools and other relevant institutions in the ACT.
  • take reasonable precautions to prevent persons associated with the school from perpetrating physical/sexual abuse against a child that the school is responsible for. For example, on 26 October 2018 in New South Wales a new Part 1B Child abuse – liability of organisations took effect under the Civil Liability Act 2002 (NSW). This new Part placed this duty on schools and other organisations responsible for children, and will also make schools vicariously liable for the acts of persons ‘akin to employees’ such as volunteers. A similar amendment was recently introduced into the Queensland Parliament and referred to committee.

Almost 12 months on from the end of the Royal Commission, many organisations, including schools, may be feeling compliance fatigue from the rapid pace of legislative reform and political discussion in relation to child protection issues. However, it is crucial, now more than ever, for schools to account for their historical approach to child safety and to avoid adopting a ‘clean slate’ mindset to their compliance particularly in light of recent legal changes discussed below.

Removal of Liability Limitations

In its Criminal Justice report, the Royal Commission recommended that state and territory governments introduce legislation to remove any remaining limitation periods or immunities that apply to child sexual abuse offences, including historical offences. In doing so, the Royal Commission specifically highlighted that any limitations or immunities should be removed with retrospective effect to ensure that injustice was not done to survivors of abuse; this means that the passage of time is not, on its own, a barrier to legal action.

Each jurisdiction has legislated to respond to the Royal Commission’s recommendations, by abolishing any remaining limitation periods for child sexual abuse claims, as well as to reinforce institutional liability. As discussed previously on School Governance, many jurisdictions have also legislated to prevent unincorporated organisations from relying upon a legal technicality – known as the ‘Ellis defence’- to avoid being sued. Under these amendments, organisations must appoint a proper defendant to meet liability for child abuse.

The abolition of liability limitations and other loopholes means that organisations can, and will, have civil proceedings brought against them by child abuse survivors. Schools must take this into account by ensuring that their current record keeping and reporting procedures have the ability to respond to historical claims. A recent case involving a NSW school highlights the importance of this retrospective due diligence.

The former student of a NSW school commenced negligence proceedings against his previous educator, claiming breach of the school’s non-delegable duty of care. The breach related to sexual abuse by a former teacher which had occurred nearly forty years ago; the teacher was criminally convicted of the offences in early 2017.

The school sought that the proceedings be struck out because the delay between the occurrence of the abuse and the hearing created a situation which was counter to the administration of justice. An important defence to the claim was that the school was not liable for the actions of the teacher, as they occurred at camps which the school did not sanction or have control over.

The court dismissed the application, noting that many cases are decided upon incomplete facts, and that key witnesses can die or become unavailable even without the substantial passage of time. Key factors which were considered significant in the judgment were:

  • the child abuse survivor, and his parents, were available to give evidence as to the circumstances surrounding the camps
  • the teacher is available for examination
  • former teachers of the school were able to give evidence in relation to the organisation of the camps in question
  • no steps were taken by the school to adduce further evidence relating to student attendance at the camps or the school’s role in relation to the camps, such as by contacting board members.

While the principal of the school had died some years prior, the court drew particular attention to the fact that the school was on notice of the sexual abuse, and the probability of claims, well before his death, meaning that the school would be relying on the fact that it had failed to take steps at the appropriate time.

Reopening ‘Settled’ Cases

The above-mentioned removal of limitation of liability periods, broadly, now allows a child abuse survivor to pursue proceedings they may not have otherwise been able to bring. However there is another potential barrier; in many instances, victims have made historical settlements with institutions for ex gratia payments (payments made ‘out of goodwill’ i.e. without legal liability), often on the condition that the victim waives their right to a further legal suit.

Even though there have been calls for sexual abuse settlements to be reopened, on the basis that payments made in the past were significantly less than what such a claim would attract under the current law, legal principles dictate that once a legal claim is resolved, that is the certain and final outcome to the matter. For these reasons, when any kind of legal claim resolves, a final document known as a deed of release will normally need to be signed. By a deed of release, the parties agree that the payment is made in final resolution of the claim. Such a deed is a contract and therefore difficult to overturn.

Those victims who settled under the old laws were almost always left with comparatively small compensation. But with the recent removal of limitation of liability periods and loopholes such as the Ellis defence, the legal landscape has shifted in favour of survivor claimants. While there is no legal judgment as yet dealing with the relevance of these old waivers, a recent settlement of a case between a school and a child abuse survivor demonstrates matters which might be significant if a case was to come before a court .

Approximately 20 years ago, a student agreed to a confidential settlement with a NSW school, having claimed to have been abused as a nine-year-old by a teacher. At the time of the original settlement, the school reportedly made no admission that it was aware of the abusive tendencies of the teacher, but since then investigations by the Royal Commission uncovered evidence that the school knew of prior offending by the teacher, did not disclose this information to the student and purportedly tried to conceal the details.

The student subsequently brought legal proceedings, alleging that the original deed agreement was void because the school acted in bad faith, concealed evidence, and took advantage of the student’s lack of legal representation. These more recent legal proceedings culminated in a million-dollar settlement.

While the law is currently not clear about when and how settlements made in the past might now be overturned, a number of jurisdictions have indicated that they may consider introducing amendments, which may be modeled on existing Queensland law. Under the Limitation of Actions Act 1974 (Qld), a court can set aside an agreed-upon settlement if it is “just and reasonable to do so”, enabling a previously voided right of action for damages for child sexual abuse to be brought to court.

How Schools Should Respond to This Changing Legal Landscape

The effect of legislative amendments across Australia is that schools, and other organisations that have responsibility for children such as childcare centres, must ensure they have appropriate policies and procedures in place to demonstrate that reasonable steps are being taken to protect children in their care. For example, schools should ensure they take a proactive risk management approach to child protection, by developing and implementing strategies to identify and mitigate child safety risks based on the nature of all school environments and activities (including while on the internet, camps and excursions).

With all jurisdictions having repealed limitation periods and restrictions of legal action in child sexual abuse claims, schools are increasingly exposed to liability for historical acts. Refer to our previous School Governance article for more information on how to respond to claims or complaints of historical sexual abuse. A school seeking to prepare itself for potential historical claims should ensure that:

  • robust records management practices are in place, capturing all circumstances and documentation relating to complaints of abuse
  • all child protection reporting requirements, including mandatory reporting and criminal reports to the Police, are complied with
  • the safety and welfare of all current and past students related to child safety incidents are upheld
  • legal advice is sought, and due process is followed, with respect to any claims brought against the school.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.