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:
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.
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:
That Bill has now been passed by the Parliament, with amendments, which include:
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.
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”.
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.
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:
The Northern Territory Department of the Attorney-General and Justice undertook a consultation on options for implementing civil litigation reforms in particular regarding:
The consultation closed in November 2018 and developments are awaited.
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.
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.