The Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA) (Amendment Act) received assent on 9 December 2021 and was due to commence on proclamation. On 28 July 2022 the South Australian Government notified the public that the Amendment Act would come into operation on 2 August 2022.
In summary, the Amendment Act amends the Civil Liability Act 1936 (SA) (Civil Liability Act) to:
Section 50E of the Civil Liability Act imposes a duty of care on a school, as a child-related organisation, to:
If a victim of sexual abuse, serious physical abuse or psychological abuse related to sexual abuse or serious physical abuse (alleged to have occurred at the school or to have involved school staff, volunteers or contractors) brings a negligence claim against the school, and the court finds that a person associated with the school abused the child, section 50F of the Civil Liability Act reverses the onus of proof. The court will presume that the school breached its duty of care unless the school can prove that it took all reasonable steps to prevent the abuse.
Whether or not a school took all reasonable steps will be assessed by a court in accordance with considerations set out in the Civil Liability Act and case law. In determining whether a school took reasonable steps to prevent the abuse, a court may take into account any of the following:
The following records may assist in demonstrating reasonable steps taken by a school to prevent the child sexual abuse, serious physical abuse or psychological abuse related to sexual abuse or serious physical abuse of its students:
As quoted in a previous School Governance article, commentators on similar reforms in New South Wales, 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.”
Schools in South Australia undoubtedly take their duty to protect children in their care very seriously, and therefore should already be taking “all reasonable steps” to protect their students from abuse. Schools, however, must be able to demonstrate this by having well documented policies and processes that are reviewed and improved on a regular basis, and by creating and maintaining records of child safety incidents and concerns, child protection training and risk management strategies to prevent child abuse by staff, volunteers and contractors.
Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).
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.