Charity Lawyers
  • Home
  • About Us
    • Who we are
    • Our team
  • Expertise
    • At a glance
    • In depth
      • Tax & duties
      • Governance
      • Charitable Trusts
      • Structures: establishment & restructuring
      • Mergers, collaborations & strategic alliances
      • Gifts, charitable fundraising & promotions
      • Disputes & regulatory reviews
      • Workplace & People issues
      • Brand, information & reputation protection
      • Property
  • Insights
    • At a glance
    • View articles
      • Updated transparency requirements under the Commonwealth Electoral Act
      • Pastoral care services DGR category
      • Resignation of director notification
      • Permanent changes to the Corporations Act regarding meetings and documents to come into force
      • Global Alliance of Impact Lawyers Launch Week
      • Prolegis Lawyers ranked Band 1 by Chambers
      • Recent changes to the Corporations Act for electronic meetings, notices, minute books and e-signing due to the Covid-19 pandemic
      • Recent decisions in Australian charity law – update
      • New requirements for DGRs to be registered as charities with the ACNC
      • High Court rules on who is a Casual employee
      • Streamlining of regulation of charities undertaking fundraising in NSW
      • Changes to Charities’ Financial Reporting Obligations
      • Changes to Casual Employment
      • Women’s Life Centre – A recent decision of the Administrative Appeals Tribunal regarding Public Benevolent Institutions (PBIs)
      • Final Report of the 2020 Review of Disability Standards for Education 2005
      • Royal Commission into Aged Care Quality and Safety - final report released
      • UPDATE 25 February 2021: Introducing ACNC Governance Standard 6 and changes to Basic Religious Charity eligibility
      • Treasury Consultation: Proposed changes to ACNC Governance Standard 3
      • Breaking: Charities to lose charitable status if they fail to join the National Redress Scheme
      • New Bill – Requiring DGRs to Register as Charities
      • Federal Budget 2020-21
      • NZ High Court finds Greenpeace NZ should be registered as a charity
      • A member of a charity has a fiduciary duty to act in the best interest of the charity?
      • Key Changes- incorporated associations in Queensland
      • Bill for new DGR category for Community Sheds now law
      • UPDATE 2 June 2020: SME Commercial Leasing Principles During COVID-19 - what does it mean for charities and not-for-profits?
      • UPDATE 19 May 2020: COVID-19 – Information for Charities and Not-for-Profits
      • UPDATE 6 May 2020: COVID-19 - Ancillary Funds, Disaster Relief Funds and AGM for companies
      • Draft bill for new DGR Category: Men’s and Women’s Sheds
      • An Update: COVID-19 Australian government’s economic response – What’s for charities and not-for-profits?
      • COVID-19 Australian government’s economic response – What’s for charities and not-for-profits?
      • ACNC to review registered charities beginning with Public Benevolent Institutions in July 2020
      • Government response to the recommendations of the ACNC Legislation Review
      • Fundraising– considerations for charities, fundraisers and donors
      • Minute-taking post Banking Royal Commission
      • Taxation Ruling: 'in Australia' conditions
      • Key changes to the Victorian Fundraising Act
      • Religious Discrimination Bill- Update
      • New protections for whistleblowers – what does it mean for charities and not-for-profits? UPDATE
      • Significant Changes in Payment and Record Keeping Requirements for Clerical and Administrative Staff
      • New Tax Office Ruling - Fringe Benefits Provided to Religious Practitioners
      • ACNC External Conduct Standards - Update
      • Fair Work Australia decision will introduce changes in entitlements and record keeping requirements of clerical and administrative employees
      • Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
      • National Redress Scheme Update
      • DGR reform proposals
      • Release of the ACNC Review Report
      • Not So Casual
      • ACNC External Conduct Standards - Public Consultation
      • Law on Advocacy by Charities
      • New ATO Draft Ruling on the fringe benefits tax: benefits provided to religious practitioners
      • Employment update - New numbers for key employment issues for a new tax year
      • Electoral disclosure & funding reform: why charities and NFPs should be concerned
      • Review of ACNC Framework
      • Reforming Administration of Tax Deductible Gift Recipients - a victory for common sense?
      • Righting Wrongs: Victoria takes lead on organisational child abuse legislation
      • Tax Deductible Gift Recipient Reform Opportunities
      • When may a charity board member be paid for their services?
      • #fixfundraising
      • Privacy Law Update: Mandatory Data Breach Notifications to come into force by the end of 2017
      • Good Things Come To Those Who Wait? ACNC releases Commissioner’s Interpretation Statement on Public Benevolent Institutions
      • Privacy Obligations - Lessons and reminders from the Red Cross Data Breach
      • Charities and the Australian Consumer Law - reducing duplication and confusion
  • Careers
  • Contact

Get In Touch


Sydney

Level 4, 107 Mount Street
North Sydney NSW 2060
Australia

   +61 2 9466 5222

  info@prolegis.com.au

Melbourne

Suite 5
197 Springvale Road
Nunawading VIC 3131
Australia

   +61 3 8672 2920

  info@prolegis.com.au

Insights

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.





Quick Links

⇢    Our Team
⇢    About Us
⇢    Expertise
⇢    Insights
⇢    ACNC

Latest News

  • March 2022
    Updated transparency requirements under the Commonwealth Electoral Act
  • March 2022
    Pastoral care services DGR category
  • March 2022
    Resignation of director notification
  • March 2022
    Permanent changes to the Corporations Act regarding meetings and documents to come into force
  • February 2022
    Global Alliance of Impact Lawyers Launch Week

Latest News & Insights

  • Updated transparency requirements under the Commonwealth Electoral Act March 2022
  • Pastoral care services DGR category March 2022
  • Resignation of director notification March 2022

Useful Links

  • Our Team
  • About Us
  • Expertise
  • Insights
  • ACNC

Sydney Office

Level 4, 107 Mount Street
North Sydney  NSW   2060
Australia

+61 2 9466 5222

info@prolegis.com.au

Melbourne Office

Suite 5

197 Springvale Road
Nunawading  VIC  3131
Australia

+61 3 8672 2920

info@prolegis.com.au

Copyright © Prolegis Lawyers. All Rights Reserved.

  • Privacy Policy