Following the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), some jurisdictions in Australia have introduced new ‘duty to protect’ laws that affect civil liability for schools. In this article we explain what the changes are, where they’ve happened, where they’re about to happen, and what this means for schools.

Changes Proposed by the Royal Commission

In September 2015 the Royal Commission released its Redress and Civil Litigation Report. The Report made several recommendations about the civil liability of institutions, including schools, for child sexual abuse that occurs at the institution or by a person associated with the institution.

We discussed the Royal Commission’s recommendations in relation to the national redress scheme and the limitation periods for civil actions in a previous article. In this article we’re focusing on recommendations 89-93. These recommendations called for governments to introduce legislation imposing a non-delegable duty on certain institutions to protect children from child sexual abuse. The recommendations also called for the introduction of a ‘reverse onus of proof’ rule that would make an institution liable for child sexual abuse committed by anyone associated with the institution, unless the institution proves they took reasonable steps to prevent the abuse.

In plain English, the Royal Commission’s recommendations translate as:

“We should make some new laws. These laws should say that institutions (including schools) have a responsibility to protect their students from sexual abuse. Schools cannot outsource this responsibility to anyone else. And if a student is abused by anyone associated with the school, we will assume it was partly the school’s fault unless they prove it wasn’t.”

The Royal Commission also recommended that these new laws be applied prospectively, not retrospectively. In other words, the laws will only apply from now on, and won’t apply to any abuse that happened in the past.

Which States and Territories have Passed these Recommendations into Law?

All Australian states and territories have made general commitments to respond to the Royal Commission’s recommendations. Most states and territories have also explicitly committed to implementing the non-delegable duty to protect and the reverse onus of proof.

However, as of 1 July 2019, only Victoria and New South Wales have actually implemented these recommendations as law. Queensland has introduced a Bill but it is yet to pass. Tasmania opened consultation on a draft Bill on 28 June 2019.

Victoria

The relevant Victorian laws are contained in Part XIII of the Wrongs Act 1958 (Vic). Key features of the laws are:

• An organisation (including a school) owes a duty to take reasonable care to prevent the physical or sexual abuse of a child by an individual associated with the organisation while the child is under the care, supervision or authority of the organisation.
• An “individual associated with the organisation” is defined broadly and includes volunteers, contractors and religious personnel.
• If someone proves that a child was physically or sexually abused by a person associated with the organisation while the child was under the organisation’s care, the courts will presume that the organisation has breached its duty of care unless the organisation proves it took “reasonable precautions” to prevent the abuse.

• The laws apply prospectively, not retrospectively.

New South Wales

The relevant New South Wales laws are contained in Part 1B of the Civil Liability Act 2002 (NSW) (Civil Liability Act). Key features of the laws are:

• An organisation (including a school) that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation from perpetrating “child abuse” (which is defined for the purposes of this Part as physical or sexual abuse) of the child in connection with the organisation’s responsibility for the child.
• An “individual associated with the organisation” is defined broadly and includes volunteers, contractors and religious personnel.
• If someone establishes that an individual associated with the organisation perpetrated child abuse in connection with the organisation’s responsibility for the child, the organisation is presumed to have breached its duty of care unless they establish that they took “reasonable precautions” to prevent the abuse.

• The laws apply prospectively, not retrospectively.

The Civil Liability Act was also amended to make it clear that organisations are vicariously liable for child abuse committed by their employees, or people who exercise functions that are akin to employees, if the organisation placed the person in a role which gave the person the occasion to perpetrate child abuse and the person took advantage of that to abuse the child. This is in effect a re-statement of the common law that applies in Australia, as set out by the High Court in Prince Alfred College Inc v ADC [2016] HCS 37 at [81].

Queensland

The Civil Liability and Other Legislation Amendment Bill 2018 (Qld) was introduced into the Queensland Parliament on 15 November 2018. Key features of the Bill are:

• An institution (including a school) has a duty to take all reasonable steps to prevent the sexual abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of the institution.
• A “person associated with the institution” is defined broadly and includes volunteers, contractors and religious personnel.
• If a person associated with the institution abuses a child while the child is under the care, supervision, control or authority of the institution, the institution is taken to have breached its duty of care unless it proves it took “all reasonable steps” to prevent the abuse.
• The laws apply prospectively, not retrospectively.

Tasmania

On 28 June 2019, the Tasmanian Department of Justice opened consultation on the Justice Legislation (Organisational Liability for Child Abuse) Amendment Bill 2019 (Tas). Key features of the draft Bill are substantially the same as the laws in New South Wales outlined above.

What are “Reasonable Precautions” and “Reasonable Steps”?

Although the terminology varies, all four sets of laws (Victoria, New South Wales, Queensland and Tasmania) include a ‘reverse onus of proof’ rule that works the same way. Firstly, the rule does not apply until it is activated. It is activated when a plaintiff in a civil case alleges that a school breached its duty of care to a child and proves that the child was abused by a person associated with the school while the child was under the school’s care.

Once the rule is activated, this means that a school is liable unless it can prove that it took “reasonable steps” or “reasonable precautions” to prevent the abuse. There are no black and white definitions of what these terms mean. However, all four sets of rules list some factors that a court may consider when determining whether an organisation took reasonable precautions, including:

• the nature and resources of the organisation
• the relationship between the organisation and the child
• whether the organisation has delegated care of the child to another organisation
• the perpetrator’s role in the organisation.

The Queensland Bill expands on the last factor, empowering courts to consider whether the organisation placed the perpetrator in a position where they could gain power over the child, achieve intimacy with the child or gain the child’s trust. The Civil Liability Act includes similar factors in relation to the issue of vicarious liability in New South Wales and these have been emulated in the Tasmanian draft Bill.

The Royal Commission suggested that meeting this onus of proof should not be difficult. The Royal Commission said in the Redress and Civil Litigation Report (at 494):

“We are satisfied that institutions should be in a good position to prove the steps they took to prevent abuse. The institution generally should have better access to records and witnesses capable of giving evidence about the institution’s behaviour than plaintiffs are likely to have.”

Other commentators agree. For example, in NSW reforms organisational liability for child abuse Matisha Panagoda and Martin Slattery of Carroll & O’Dea Lawyers said:

“There are already many regulations to ensure best practice is implemented in the operation of institutions that operate facilities where children are in their care. The reverse onus of proof will simply require that they maintain adequate policies, procedures, codes of conduct and training and will now need to maintain comprehensive records to demonstrate that reasonable precautions were taken to prevent child abuse from occurring from time to time. Given that the Limitations Act 1969 (NSW) has also been amended to remove a time bar for claims involving child sexual abuse, records demonstrating policies and practices from time to time will now also need to be properly archived.”

What Does this Mean for Schools?

In the context of child sexual abuse, it’s hard for a potential defendant to discuss civil liability without coming across as soulless and self-serving. Any attempt by a school to seek to limit its civil liability and prioritise its own protection over that of its students rightly leaves most people feeling disgusted and appalled.

Fortunately, there is no reason such an appalling situation should ever arise. Schools don’t have to choose between self-protection and child protection. As long as a school puts child protection first, self-protection will automatically follow. A robust child protection program, that it is regularly reviewed and continuously improved, not only provides a record of the “reasonable precautions” a school has taken, it also achieves the much more important goal of preventing abuse in the first place.

As the Royal Commission said in the Redress and Civil Litigation Report (at 494):

“Changes to the duties of institutions do more than provide an additional or more certain avenue for victims of abuse to seek compensation after institutional child sexual abuse has occurred. Changes to the duties of institutions are critical measures for preventing institutional child sexual abuse occurring in the first place.”

Schools that take child protection seriously don’t need new legislation to tell them that they owe a duty to protect the children in their care. These school will already be going above and beyond “all reasonable precautions” to protect their students from abuse. As long as they document how they do this and maintain these records, for these schools, the new laws will likely have no practical effect at all.

About the Authors

Mark Bryan

Mark is a Legal Research Consultant at CompliSpace. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

Deborah de Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.