Home
| Databases
| WorldLII
| Search
| Feedback
Precedent (Australian Lawyers Alliance) |
LEGISLATIVE RESPONSES TO ROYAL COMMISSION RECOMMENDATIONS
WHERE ARE WE AT?
By Michelle James
On 12 November 2012, Prime Minister Julia Gillard announced that she would recommend the establishment of a Royal Commission to inquire into institutional responses to child sexual abuse. A consultation paper seeking input into the terms of reference received numerous submissions, many of which highlighted the inadequacies of the legal remedies available to survivors who were seeking redress through the legal system.
In the letters patent,[1] the Commission was specifically directed to consider:
‘
d. what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.
AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms.’
Over its five years, the Royal Commission delivered 409 recommendations across four reports. This article considers recommendations from the:
• Redress and Civil Litigation Report; and
• Criminal Justice Report.[2]
REDRESS AND CIVIL LITIGATION REPORT
In its Redress and Civil Litigation Report dated 15 September 2015, the Royal Commission made 99 recommendations. Fifteen of these recommendations were directed towards legislative and policy reforms intended to make civil litigation a more effective means of providing justice for survivors.[3]
The response from the states and territories has, predictably, been inconsistent and varied.[4] As we approach the fifth anniversary of the Report, no individual state or territory can claim to have fully responded to all of the recommendations. Moreover, even where recommendations have had a legislative response, differences between the ways in which the recommendations have been adopted in jurisdictions can mean that a survivor in one jurisdiction has rights that do not exist in another.
Recommendations
As stated above, the final 15 of the 99 recommendations contained within the Redress and Civil Litigation Report relate to law reform (the other 84 are directed to redress). The recommendations cover the following areas:
• limitation periods (recommendations 85–88);
• duty of institutions (recommendations 89–93);
• identifying a proper defendant (recommendations 94–95); and
model litigant approaches (recommendations 96–99)
Recommendations relating to limitation periods
85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.
88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.
Table 1: Legislative response to recommendations relating to limitation periods
ACT
|
NT
|
NSW
|
QLD
|
SA
|
TAS
|
VIC
|
WA
|
---|---|---|---|---|---|---|---|
Limitation Act 1985 amended by Justice and Community
Safety Legislation Amendment Act 2016 (No. 2) (commenced 24 May 2017)
|
Limitation Act 1981 amended by Limitation Amendment (Child Abuse)
Act 2017 (commenced 15 June 2017)
|
Limitation Act 1969 amended by Limitation Amendment (Child
Abuse) Act 2016 (commenced 17 March 2016)
|
Limitations of Actions Act 1974 amended by Limitations of
Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Pt 2
commenced 1 March 2017)
Civil Liability Act 2003 amended by forthcoming
Civil Liability and Other Legislation Act 2018 (passed 23
October 2019, awaiting royal assent, to commence on proclamation)
|
Limitation of Actions Act 1936 amended by Limitation of
Actions (Child Abuse) Amendment Act 2018 (commenced 1 February 2019)
|
Limitation Act 1974 amended by Limitation Amendment Act 2017
(commenced 1 July 2018)
|
Limitations of Actions Act 1958 amended by Limitation of Actions
Amendment (Child Abuse) Act 2015 (ss3 and 4 commenced 1 July 2015) and by
the Children Legislation Amendment Act 2019 (commenced 17 September
2019)
|
Limitation Act 2005 amended by Civil Liability Legislation
Amendment (Child Sexual Abuse Actions) Act 2018 (commenced 1 July
2018)
|
Removed limitation periods for personal injury claims arising out of sexual
abuse when the person was a child in an institutional
context: s21C.
‘Sexual abuse’ is defined to include an offence of a sexual
nature and misconduct of a sexual nature: s21C(4).
|
Removed limitation periods, including retrospectively, for child abuse
actions: s5A. ‘Child abuse’ defined as any of the
following
perpetrated on a person under 18 years: sexual abuse, serious physical abuse or
psychological abuse arising from that sexual
abuse or serious physical abuse:
s5A(6).
Empowers the court to set aside certain judgments on previous actions
arising from child sexual abuse if it is ‘just and reasonable’
to do
so: s54.
|
Removed limitation periods, including retrospectively, for death of or
personal injury to a person resulting from an act or omission
that constitutes
child abuse of the person: s6A. ‘Child abuse’ is defined as sexual
abuse, serious physical abuse and
‘connected abuse’ (perpetrated in
connection with the two former categories of abuse): s6A(2).
|
First amending Act:
Removed limitation periods, including retrospectively, for damages actions
relating to personal injury resulting from the sexual abuse
of the person as a
child: ss11A, 48(1), (2).
Empowers the Supreme Court or original court, where it is ‘just and
reasonable’ to do so, to set aside a judgment on the
ground that a
limitation period applying to the right of action had expired:
s48(3)–(5).
Empowers a court to set aside an agreement effecting a previous settlement
of a right of action if it is ‘just and reasonable’
to do so:
s48(5A). The application of the latter subsection was considered in TRG v The
Board of Trustees of the Brisbane Grammar
School.[5]
Second amending Act will:
Further amend s11A to include serious physical abuse; and/or psychological
abuse of the child perpetrated in connection with sexual
abuse or serious
physical abuse of the child.
|
Removed limitation periods, including retrospectively for actions for
personal injury resulting from the abuse of a child: s3A and
the transitional
provisions set out in Sch 1. ‘Abuse’ is defined as sexual abuse,
serious physical abuse and psychological
abuse related to sexual abuse or
serious physical abuse: s3A(5).
An action on a previously barred cause of action may be commenced where a
judgment was previously given or the action dismissed on
the ground that a
limitation period applying to the cause of action had expired. In granting
permission for the action to be commenced,
a court may make any order it
considers necessary for the action to proceed or that is otherwise appropriate
in the circumstances:
Sch 1 of the amending Act.
|
Removed limitation periods, including retrospectively, for actions for
damages arising out of personal injury related to sexual abuse
or serious
physical abuse when the person was a minor: s5B.
The Justice Legislation (Organisational Liability for Child Abuse)
Amendment Bill 2019, if passed, will further amend the Limitation Act
by allowing courts to set aside previous settlements if ‘it is in the
interests of justice to do so’.
|
Removed limitation periods, including retrospectively, for actions for
personal injury resulting from physical or sexual child abuse
(may be by
‘act or omission’) or any psychological injury arising from that
abuse: Pt IIA, Div 5.
Empowers the Supreme Court or original court, where it is ‘just and
reasonable’ to do so, to set aside a judgment on the
ground that a
limitation period applying to the right of action had expired or there had been
a refusal to extend the limitation
period: s27QA(1), but only when the
limitation period expired before 1 July 2015: s27OA.
Empowers a court to set aside an agreement effecting a previous settlement
of a cause of action if it is ‘just and reasonable’
to do so:
s27QA(2), but only when the cause of action was settled by way of agreement
before 1 July 2015: s27OA.
|
Removed limitation periods including retrospectively, for claims arising
out of child sexual abuse: s6A.
Empowers a court, where it was ‘just and reasonable’ to do so,
to set aside a judgment given or action dismissed on the
ground that the action
was statute-barred: s91.
Empowers a court to set aside a previously settled cause of action: s92.
Section 92 was considered by the District Court in JAS v The Trustees of the
Christian Brothers.[6]
|
Recommendations relating to duty of institutions
89. State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.[7]
90. The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service:
a) residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care
b) day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs
c) disability services for children
d) health services for children
e) any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care
f) any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or kinship care.
91. Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.
92. For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the religious organisation.
93. State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively.
Table 2: Legislative response to recommendations relating to duty of institutions
ACT
|
NT
|
NSW
|
QLD
|
SA
|
TAS
|
VIC
|
WA
|
---|---|---|---|---|---|---|---|
No legislative response as yet
|
No legislative response as yet
|
Civil Liability Act 2002 amended by Civil Liability
Amendment (Organisational Child Abuse Liability) Act 2018 (commenced 26
October 2018 except Pt 1B, Div 4, which commenced 1 January 2019)
|
Civil Liability Act 2003 amended by the forthcoming
Civil Liability and Other Legislation Act 2018 (passed 23
October 2019, awaiting royal assent, to commence on proclamation)
|
No legislative response as yet
|
No legislative response as yet, bill pending
|
Wrongs Act 1958 amended by Wrongs Amendment (Organisational Child
Abuse) Act 2017 (Pt XIII commenced 1 July 2017)
|
No legislative response as yet
|
While the ACT government has accepted the recommendations in
principle,[8] it has not yet
introduced legislation to give them effect.
|
There has been no formal response to these recommendations from the NT
government. A discussion paper in September
2018[9] sought community responses on
proposed options for these reforms. The consultation period closed on 2 November
2018.
|
Codified existing, and introduced new, liabilities where a child is abused
in the care of an institution: Pt 1B.
Introduces a statutory non-delegable duty of care for all institutions to
prevent child abuse (and reverses the onus of proof in the
duty of care): Pt 1B,
Div 2.
Extends vicarious liability to include persons who are ‘akin’
to an employee in line with the common law as outlined by
the High Court in
Prince Alfred College: Pt 1B, Div
3.[10]
|
The amending Act will introduce a statutory duty on institutions to take
all reasonable steps to prevent sexual and physical abuse
of children (in ss33D
and 33E) but stops short of a non-delegable duty of care.
The second reading speech to the bill specifically notes that ‘the
doctrine of vicarious liability [should] be left to the common
law’.[11]
|
In December 2018, the South Australian government announced that it needed
to further consider the imposition of a statutory non-delegable
duty of care.
The reverse onus of proof in relation to duty of care has been accepted in
principle, but the government has so far
failed to make the necessary
legislative amendment.
|
The Justice Legislation (Organisational Liability for Child Abuse)
Amendment Bill 2019 which, if passed, will amend the Civil Liability Act
2002, was tabled on 11 September 2019.
|
Introduced a non-delegable duty of care on relevant organisations to take
‘reasonable precautions’ to prevent the physical
or sexual abuse of
children by individuals associated with those organisations, and reverses the
onus of proof in relation to this
duty: Pt XIII.
|
A discussion paper published in December 2018 sought community consultation
on these recommendations. Consultation closed on 11 March
2019. However, there
has not yet been a Bill or any other response from the WA government.
|
Recommendations relating to identifying a proper defendant
94. State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:
a) the property trust is a proper defendant to the litigation
b) any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.
95. The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims.
Table 3: Legislative response to recommendations relating to identifying proper defendant
ACT
|
NT
|
NSW
|
QLD
|
SA
|
TAS
|
VIC
|
WA
|
---|---|---|---|---|---|---|---|
Civil Law (Wrongs) Act 2002 amended by Civil
Law (Wrongs) (Child Abuse Claims Against Unincorporated Bodies) Amendment Act
2018 (commenced 28 September 2018)
|
No legislative response as yet
|
Civil Liability Act 2002 amended by Civil Liability
Amendment (Organisational Child Abuse Liability) Act 2018 (commenced 26
October 2018 except Pt 1B, Div 4, which commenced 1 January 2019)
|
Civil Liability Act 2003 amended by the forthcoming Civil
Liability and Other Legislation Act 2018 (passed 23 October 2019,
awaiting royal assent, to commence on proclamation)
|
No legislative response as yet
|
No legislative response as yet, bill pending
|
Legal Identity of Defendants (Organisational Child Abuse) Act
2018 (commenced 1 July 2018)
|
No legislative response as yet
|
Introduced a mechanism to enable an unincorporated body to nominate an
entity to act as the defendant in a proceeding for a child
abuse claim, empower
a court to make an order to appoint a related trust as defendant to a child
abuse claim, and allow trustees
to apply trust property to meet liability for
child abuse.
|
A discussion paper from September
2018[12] sought community responses
on proposed options for these reforms; consultation closed on 2 November
2018.
However, no action has been taken to implement the recommendations
following that consultation process.
|
Introduced a mechanism that enables court proceedings to be brought against
an unincorporated association, which can now appoint a
related trust as a proper
defendant: s6N. The test for this appointment is set out in s6N(3).
|
New ss33F–33M deal with proceedings against unincorporated
institutions, and satisfaction of liability. The institution can
nominate a
nominee to be the defendant, or the claimant can apply to the court for an order
if no nomination is made within 120 days.
|
There has been no action on the part of the South Australian government in
relation to these recommendations, although it has stated
its intention to
implement them in principle.
|
Responses to these recommendations are contained in the Justice Legislation
(Organisational Liability for Child Abuse) Amendment Bill
2019 which, if passed,
will amend the Civil Liability Act 2002. The Bill was tabled 11 September
2019.
|
The Act applies where a plaintiff wishes to commence a claim against a
non-government organisation that is an unincorporated association
or body
(referred to as an NGO) arising out of child sexual abuse, and but for its
unincorporated status the NGO could be sued, and
the NGO further controls an
associated trust or trusts. In these circumstances, the NGO can nominate an
entity capable of being sued
to act as a proper defendant, or the plaintiff can
apply to the court for an order to proceed with a claim against the trustees of
the associated trust.
|
A discussion paper published in December 2018 sought community consultation
on these recommendations. Consultation closed on 11 March
2019. However, no
action has been taken to implement the recommendations following that
consultation process.
|
Recommendations relating to model litigant approaches
96. Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse.
97. The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims.
98. The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified.
99. Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives.
Table 4: Policy response to recommendations relating to model litigants
ACT
|
NT
|
NSW
|
QLD
|
SA
|
TAS
|
VIC
|
WA
|
---|---|---|---|---|---|---|---|
There are no model litigant approaches in the ACT.
|
A revised Model Litigant Policy was published on 19 September 2017.
However, this does not specifically refer to child sexual abuse.
|
By way of a Premier’s memorandum, the NSW government introduced the
NSW Government Guiding Principles for Government Agencies, Responding to
Civil Claims For Child Sexual Abuse, responding to these recommendations, on
29 June 2016.[13]
|
The Whole-of-Government Guidelines for responding to civil litigation
involving child sexual abuse, responding to these recommendations, were
published on 27 June 2018.
|
South Australia’s Government Model Litigant Guidelines existed
prior to the release of the Royal Commission’s recommendations and it is
the view of the South Australian government
that these guidelines meet the
relevant recommendations. No further action is intended.
|
There are currently no model litigant approaches in Tasmania.
|
The Department of Health and Human Services and Department of Education and
Training issued Common Guiding Principles for responding to civil claims
involving allegations of child sexual abuse to complement the existing Model
Litigant Guidelines in 2014.
|
In May 2018, the Western Australia Government Whole of Government
Guiding Principles for Responding to Civil Litigation Involving Child Sexual
Abuse, responding to these recommendations, were published.
|
CRIMINAL JUSTICE REPORT
This report from December 2017 made 85 recommendations focusing on reform of the criminal justice system, to ensure that:
• ‘the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused;
• criminal justice responses are available for victims and survivors; and
• victims and survivors are supported in seeking criminal justice responses.’
Recommendation to create offence of failure to report child sexual abuse in institutional context
Considered here is the recommendation that the states and territories introduce legislation to create a criminal offence of failure to report child sexual abuse in an institutional context. This offence should apply to any adult person who is an owner, manager, staff member or volunteer of an institution (including personnel of religious institutions),[14] including those arising out of religious confessions.[15] The remaining recommendations relate to police investigation, prosecution, offences, conduct of trials, evidence, judicial directions, sentencing and appeals.
Table 5: Legislative response to recommendation to create new ‘failure to report’ offence
ACT
|
NT
|
NSW
|
QLD
|
SA
|
TAS
|
VIC
|
WA
|
---|---|---|---|---|---|---|---|
Crimes Act 1900 and Children and Young People Act 2008
amended by Criminal Justice Legislation Amendment Act 2019
(commenced 1 September 2019)
|
Crimes Act 1900 amended by the Criminal Legislation
Amendment (Child Sexual Abuse) Act 2018 (commenced 31 August
2018)
|
No legislative response as yet, bill pending
|
No legislative response as yet
|
No legislative response as yet, bill pending
|
Crimes Act 1958 amended by Crimes Amendment (Protection of
Children) Bill 2014 (commenced 27 October 2014)
Children, Youth and Families Act 2005 and Evidence Act
2008 amended by Children Legislation Amendment Act 2019 (relevant
provisions not yet proclaimed to commence)
|
No legislative response as yet
|
|
Created a failure to report offence applicable to all adults: Crimes
Act 1900, s66AA.
Extended mandatory reporting of sexual offences against children to
ministers of religion: Children and Young People Act 2008,
s356(1A).
|
All persons, including clergy, are already subject to mandatory reporting
laws in the Northern Territory if they reasonably believe
a child under 14 years
of age to be the victim of a sexual offence: s26.
|
Created a ‘concealing child abuse offence’ punishable by up to
five years imprisonment: s316A. While the offence applies
to all adults,
including members of the clergy and ministers of religion, under the Uniform
Evidence Law operating in NSW a statutory
evidential privilege currently applies
to religious confessions: Evidence Act 1995,
s127.[16]
|
On 22 August 2019, the Queensland Attorney-General released a Consultation
Draft Bill, Criminal Code (Child Sexual Offences Reform)
and Other Legislation
Amendment Bill 2019, creating a criminal offence of ‘failure to
report’, carrying a maximum sentence
of three years imprisonment.
While in Queensland there is no statutory evidential privilege applying to
religious confessions, the Consultation Draft Bill contains
amendments
clarifying that the failure to report an offence applies to any information
disclosed in, or in connection with, a religious
confession.
|
As at December 2018, the South Australian government continued to consider
recommendations relating to failure to report. Mandatory
reporting obligations
contained in the Children and Young People (Safety) Act 2017 do not
include any exemption for ministers of religion for reporting information
communicated in the confessional.
|
Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018 was
introduced on 28 November 2018. If passed, it will incorporate
a failure to
report offence into the Criminal Code 1924: proposed s105A.
It will apply to all adults and will not exempt information that was
obtained during religious confession.
The first reading of the bill in the Legislative Council occurred on 2
August 2019.
|
In response to its 2013 Betrayal of Trust
report,[17] the Victorian government
legislated a ‘failure to disclose’ offence on 27 October 2014 which
applies to all adults, but
contained an exemption for information obtained in
religious confessions: s327.
Amends inter alia the Children, Youth and Families Act
2005 and the Evidence Act 2008 to clarify that disclosures
made during religious confessions will not be exempt from mandatory reporting
requirements or the failure
to disclose offence.
|
On 23 May 2019, the state government announced that it will amend the
Children and Community Services Act 2004 to require ministers of religion
to report child sexual abuse, including where the knowledge was gained from the
confessional. On
30 August 2019, the WA government released a Discussion
Paper[18] seeking community
consultation on proposals to enact legislation giving effect to Royal Commission
recommendations. The Paper makes
three proposals on how to deal with
‘failure to report’, one being the introduction of a new
‘concealment of child
abuse’ offence. It is noted that the
government has accepted all of the Royal Commission recommendations in
principle. Consultation
closes on 18 October 2019.
|
The responses to the Royal Commission recommendations have been varied, and a number of states and territories are significantly lagging behind expectations in terms of enacting recommendations in a timely manner. The Australian Lawyers Alliance will continue to advocate for legislative responses in line with all of the Royal Commission’s recommendations.
Please note that this article was finalised on 29 October 2019.
Michelle James is a personal injuries compensation Principal in Maurice Blackburn’s Brisbane office and the head of its national abuse law litigation practice. PHONE (07) 3016 0333 EMAIL mjames@mauriceblackburn.com.au.
[1] 11 January 2013.
[2] See also the Final Report dated 15 December 2017, and the Working with Children Checks Report dated August 2015.
[3] Recommendations 85–99.
[4] See, for example, the removal of limitation periods which across different jurisdictions are in respect of sexual and/or serious physical, or physical abuse.
[7] Subsections to Recommendation 89 have been edited for brevity.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2019/69.html