The Royal Commission’s Redress and Civil Litigation Report

In several previous articles, we have discussed the responses by states and territories to the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) in its Redress and Civil Litigation Report, released in September 2015.

The Royal Commission made 99 recommendations in the Redress and Civil Litigation Report, including for:

• removal of limitation periods that apply to claims for damages from survivors of child sexual abuse (Recommendations 85–88)
• imposing prospectively on institutions such as schools, residential facilities, and children’s disability and health services:
• a non-delegable duty of care for institutional child sexual abuse
• liability for child sexual abuse perpetrated by individuals associated with the institution, unless the institution can prove it took reasonable steps to prevent the abuse (Recommendations 89–93)
  
  (Our article in July 2019 discussed legislation to give effect to Recommendations 89–93 that has been enacted in Victoria and New South Wales, and legislation that was in progress in Queensland and Tasmania.)

• the identification of a proper defendant that could be sued for damages, to avoid the situation where the organisation that owes children a duty of care is unincorporated and cannot be sued, with its assets being held by a separate incorporated entity (Recommendation 94)
• government-funded unincorporated bodies providing children’s services to be required to maintain insurance that covers their liability for institutional child sexual abuse claims (Recommendation 95)
• model litigant approaches (Recommendations 96-99).

We note that, in Recommendation 88, the Royal Commission stated that state and territory governments should act to remove limitation periods as soon as possible, even if that meant doing so before implementing the Recommendations in relation to the duty of institutions and identifying a proper defendant.

As we indicated in our two-part article on Addressing Liability for Institutional Child Abuse the states and territories have taken a variety of approaches to enacting the legislation needed to give effect to these recommendations.

Queensland

We mentioned in our July 2019 article that the Civil Liability and Other Legislation Amendment Bill 2018 (Qld) was introduced into the Queensland Parliament in November 2018. As we mentioned in that article, the key features of the Bill were:

• 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.

That Bill has now been passed by the Parliament, with amendments, which include:

• expanding its application to encompass, not only child sexual abuse, but also serious child physical abuse and psychological abuse connected with child sexual abuse and serious child physical abuse
• amending the definition of person “associated with” an institution to reflect the wording used in the Redress and Civil Litigation Report, consistent with the equivalent definitions in NSW and Victoria.

The Bill received Royal Assent on 30 October 2019 and is yet to commence.

In addition to being the Queensland Government’s response to Recommendations 89–93, this amending Act establishes a statutory framework for nominating a proper defendant, in accordance with Recommendation 94.

This was the approach taken in NSW, where amendments to the Civil Liability Act 2002 (NSW) introduced the new statutory duty of care and created mechanisms for bringing proceedings against unincorporated associations. In Victoria Recommendation 94 was implemented through separate legislation, the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), which was passed after the legislation that created the new duty of care.

Tasmania

We noted in our previous article that the Tasmanian Department of Justice had recently opened a public consultation on an amendment Bill that was similar to legislation enacted in NSW. The consultation closed in early August 2019 and the Justice Legislation Amendment (Organisational Liability for Child Abuse) Bill 2019 (Tas) was introduced into the Tasmanian Parliament’s Legislative Assembly in September 2019. The Bill is currently before the Legislative Council.

The Bill would impose a statutory duty on organisations to prevent child abuse and also enable survivors of child abuse to sue unincorporated organisations that were previously not able to be sued because they lacked the necessary “legal personality”. The Bill also provides for amendments to the Limitation Act 1974 (Tas) that would enable a court to set aside a previous settlement between an institution and a survivor “if it is in the interests of justice to do so”.

Western Australia

The Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) removed the limitation periods for actions brought by survivors of child sexual abuse. It also provided survivors with a legal basis for suing institutions in the name of their current office holders, and for the assets of institutions to be used to discharge any child sexual abuse liability.

In introducing the Bill into the Legislative Assembly, in November 2017, the WA Attorney-General said that “The government will not hesitate to introduce further legislation should institutions choose to rely on their structures and asset holdings to prevent sexual abuse victims from obtaining adequate compensation”.

The Attorney-General also stated that the WA Government would continue to consider all of the Royal Commission’s recommendations.

Between December 2018 and March 2019, the WA Department of Justice undertook a consultation on a Discussion Paper regarding the duty of institutions (Recommendations 89-93). Further developments are awaited.

South Australia

The South Australian Government’s December 2018 update on its response to the Royal Commission, published on the Department for Child Protection website, reports regarding the Redress and Civil Litigation Report that:

• Recommendations 85-88 were implemented through the Limitation of Actions (Child Abuse) Amendment Act 2018 (SA)
• Recommendations 89–90 (the non-delegable duty of care) and Recommendation 95 (requiring government-funded unincorporated bodies providing children’s services to maintain insurance) are being given further consideration in consultation with key agencies including the Department for Child Protection and the Department of Education
• Recommendations 91-93 (institutional liability for institutional child abuse by persons associated with the institution unless the institution took reasonable steps to prevent the abuse) and Recommendation 94 (proper defendant) are accepted in principle, noting that consideration of legislative reform is required
• Recommendations 96–99 (model litigant approach) are met through the South Australia Government Model Litigant Guidelines, already in place and no further action is required.

The Northern Territory

 The Northern Territory Department of the Attorney-General and Justice undertook a consultation on options for implementing civil litigation reforms in particular regarding:

• establishing a statutory duty of care that incorporates a non-delegable element and reverse onus provisions
• ensuring that survivors who seek damages against institutions with an associated property trust will be able to sue an entity with sufficient assets to meet their claim.

 The consultation closed in November 2018 and developments are awaited.

The Australian Capital Territory

 The Australian Capital Territory (ACT) enacted legislation in 2016 and 2017 to remove limitation periods relating to child sexual abuse. In 2018, the Civil Law (Wrongs) (Child Abuse Claims Against Unincorporated Bodies) Amendment Act 2018 (ACT) implemented the “proper defendant” recommendation.

While the ACT Government stated that it would implement the Recommendations, imposing on institutions a duty to prevent institutional child sexual abuse, it has not done so to date.

What Does This Mean for Schools?

The legislative approaches to implementing the recommendations in the Redress and Civil Litigation Report vary considerably among the states and territories, although all are necessarily complex.

While the legislation is complex, the key message can be expressed simply: schools should focus on doing everything they reasonably can to prevent the abuse of children in their care.