Righting Wrongs: Victoria takes lead on organisational child abuse legislation
August 2017 | News | Mary Sheargold
On 1 July 2017, a new Part XIII to the Wrongs Act 1958 (Vic) (the Act) came into force. The changes were made in response to one of the recommendations of the November 2013 Victorian Parliamentary Family and Community Development Committee ‘Betrayal of Trust’ report, issued after its inquiry into the handling of child abuse by religious and other non-government organisations. The new laws make Victoria the first of Australia’s States and Territories to legislate to protect children specifically against all forms of organisational and institutional abuse. The changes are designed to make it more difficult for institutions to deflect responsibility and to deny liability for that child sexual abuse.
Who do the new amendments apply to?
The amendments cover the activities of a ‘relevant organisation’ in Victoria, regardless of where the organisation is registered.
‘Relevant organisations’ are defined broadly and include any entity that exercises care, supervision or authority over children, whether primarily or incidentally.
What do the new amendments impose?
The new amendments impose a duty of care which is non-delegable, meaning that relevant organisations cannot assign their duty to someone else. Relevant organisations will be responsible for the actions of individuals who are associated with them. An individual will be viewed as being ‘associated’ with a relevant organisation if they are an officer, an office-holder, an employee, an owner, a volunteer or contractor.
Importantly, the changes also shift the burden of proof in a proceeding, such that where an allegation is made that abuse has occurred, the defendant (that is, the relevant organisation) will be presumed to have breached its duty of care unless it can prove on the balance of probabilities that it took reasonable precautions to prevent the abuse. This is a significant responsibility for organisations because of the need to demonstrate precautions undertaken to prevent abuse rather than to demonstrate that they made appropriate response(s) to allegations.
As the law does not define what would be “reasonable precautions”, it will be interesting to see how courts interpret the phrase “reasonable precautions to prevent the abuse”. More on this below.
How these new amendments may impact upon organisations who offer services involving children in Victoria
The overarching impact of these new amendments on organisations that work with children appears to be two-fold:
1. Organisations as a whole may now be sued rather than the individuals allegedly responsible for abuse.
This means that any organisation that engages with children will need to ensure that it has appropriate systems and processes in place as they will need to demonstrate precautions to prevent abuse were taken.
2. The imposition of an obligation on ‘relevant organisations’ to actively prevent harm as opposed to simply responding to it.
The 2015 Royal Commission ‘Redress and Civil Litigation Report’ recommended that the reasonable steps for an organisation to take will vary depending upon the nature of the organisation and the role of the perpetrator in the organisation. For example, more might be expected of a commercial enterprise than a community-based voluntary institution. Similarly, more might be expected of institutions in relation to their employees than their contractors.
The 2016 report by the Royal Commission into Institutional Responses to Child Sexual Abuse recommended the implementation of a ‘Child Safe Institution’ model for organisations that work with children. The principles of this model are:
- Child safety is embedded in institutional leadership, governance and culture
- Children participate in decisions affecting them and children are taken seriously
- Families and communities are informed and involved
- Equity is promoted and diversity respected
- People working with children are suitable and supported
- Processes to respond to complaints of child sexual abuse are child focused
- Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training
- Physical and online environments minimise the opportunity for abuse to occur
- Implementation of child safe standards is continuously reviewed and improved.
- Policies and procedures document how the institution is child safe
There is also a new provision, which provides that if an entity is not capable in law of being sued, it may nominate, with the consent of the nominee, a legal person that is capable of being sued as the appropriate defendant for the purposes of a claim. This means that unincorporated associations will be able to nominate an appropriate defendant in any proceedings.
The amendments only deal with future cases. They do not act retrospectively.
What should you do now?
The amendments to the Act place significant obligations on organisations who engage with children whether in significant or incidental capacities. We recommend you carefully review all of your policies (including codes of conduct) and procedures (including guidelines), especially those relating to child safety and protection, screening and training of employees and contractors, and dealing with feedback (including complaints) made by children and their parents or guardians. It would also be wise for children and their families to be involved in the process of reviewing and adopting the new policies and procedures.
If you would like us to assist with your review, please contact us.