December 11, 2018

Navigation of Australia’s different state based laws in relation to child sexual abuse

In Australia, the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) was established in January 2013 to investigate the sexual abuse of children in both religious and non-religious public and private institutions. The final report was released on 15 December 2017 and recommended State and Territory governments to:

  • introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is based on personal injury resulting from sexual abuse of the person in an institutional context, when the person is or was a child;
  • 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; and
  • introduce legislation so that a person can identify a proper defendant and commence proceedings against unincorporated bodies.

During the five year enquiry, the Royal Commission heard from 7,981 survivors in 8,013 private sessions and found:

  • 58.1% of survivors of child sexual abuse said that the abuse took place in an institution managed by a religious organisation, 32.5% in a government-run institution and 10.5% in a non-government, non-religious institution;
  • almost 2 in 3 survivors were male survivors (63.6%) and more than 1 in 3 were female survivors (36.1%);
  • the average age of survivors was 52 years and the youngest was 7 years old; and
  • on average, it takes 23.9 years for a survivor to tell someone about the abuse.

Changes to the legislation

States and Territories across Australia have responded to the Royal Commission's final report by making legislative change. However that change is not consistent. The main changes are:

  • New South Wales, Western Australia, Queensland, Victoria and the ACT have passed legislation removing the Ellis defence – which protected unincorporated associations from being sued. The Ellis defence is named after the case Trustees of the Roman Catholic Church, The Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565. In that case Mr Ellis who had suffered sexual abuse when volunteering as an altar boy in the 1970s sued the Archdiocese of Sydney, an unincorporated association, and the Trustees of the Roman Catholic Church, which held the assets of the Roman Catholic Church of the Archdiocese of Sydney. The New South Wales Court of Appeal determined that:
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    - the Archdiocese of Sydney could not be sued. As an unincorporated association it was not a legal entity and as such could not be sued in its own right;

    - a person or group within an unincorporated association can be held liable in tort or contract as principals provided they assumed an active or managerial role in which they exercised a palpable control over an activity at the relevant time. However the liability of such persons or groups within the unincorporated association is personal, not representative in nature;

    - the trustees were not liable for Mr Ellis’ abuse simply because they held property for the church; and

    - consequently, Mr Ellis’ claim failed.

    The effect of the legislative changes is that survivors of child sexual abuse will be able to sue unincorporated entities for compensation.​:
  • Victoria, New South Wales and Queensland has introduced legislation imposing a duty of care to prevent individuals within their organisations from perpetrating child abuse. Further, in Victoria and New South Wales in proceedings concerning the breach of that duty of care, the organisation will be presumed to have breached that duty unless it can establish that it took reasonable precautions to prevent child abuse.
  • Western Australia, New South Wales, Victoria, ACT, Queensland, Tasmania and the Northern Territories have amended their respective Limitation Acts to remove the limitation period for child sexual abuse claims. Readers should be aware that the limitation period in Western Australia, Queensland and the ACT has been removed for sexual abuse claims only and excludes physical, psychological or emotional abuse claims. The legislation in Victoria, New South Wales, Tasmania and the Northern Territory is broader and removes the limitation period in relation to sexual abuse, physical abuse and psychological abuse.
  • Western Australia and Queensland are the only states that have amended their respective Limitations Acts to allow claimants to re-open previously settled causes of action. The amendments provide the court with the authority and power to grant leave to permit claimants to commence proceedings and to set aside any settlement agreements, if it is just and reasonable to do so. Once leave is granted, the settlement agreement will be void and a party to that agreement may not seek to recover money paid by, or for, the party under the agreement.
  • South Australia has not yet passed any legislation.

What insurers and insureds need to know

  1. Inconsistent legislation
    In view of the inconsistencies of the amending legislation throughout the country, organisations which operate across the country will need to become familiar with the different laws in different states.
     
  2. Removal of the Ellis defence
    In the states or territories which have removed the Ellis defence, survivors of child sexual abuse will be able to pursue compensation against unincorporated associations. In those states, it would be reasonable to expect an increase in child sexual abuse claims.

    Entities, which have responsibility for the care of children, would be wise to review their internal policies for the welfare of children to ensure their policies are compliant with any changes in the legislation and that they have maintained current "best practice" in safeguarding procedures.
     
  3. No limitation period but the Courts still have the power to permanently stay proceedings
    While limitation periods have been removed, the Courts still have discretion to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant so that a fair trial is not possible. In the case, Connellan v Murphy [2017] VSCA 116, the Court of Appeal of the Supreme Court of Victoria permanently stayed the plaintiff’s action. In that case the plaintiff commenced proceedings in respect of sexual assaults which occurred 50 years ago. The Court of Appeal decided that the proceedings were oppressive as the defendant was being asked to defend himself at the age of 62 for actions he is alleged to have committed as a 13 year old. In view of the elapse of time, neither party was in a position to properly investigate the relevant surrounding circumstances or events. All the principal witnesses who were adults at the time were dead. Further, the Court voiced their concern about the fair determination of issues of causation and quantum in particular the investigation of how the plaintiff’s chronic post-traumatic stress order commenced and developed as much of that investigation would be dependent upon the plaintiff’s assertions of her subjective recollection of events.

    However, in light of the removal of limitation periods, in many of the states and territories, for claims concerning the sexual abuse of children, entities which have responsibility for care of children, need to put in place a document retention system which will retain relevant documents for decades. The documents which should be retained include but are not limited to the entity's policy for safeguarding the welfare of children, employment screening searches on its members of staff, documents evidencing the formal training of the staff concerning the safeguarding of the welfare of the children, incident and investigation reports and incident related correspondence and the applicable liability insurance policies.
     
  4. Claimant's may try to re-open settled claims
    The modifications to the Limitation Acts in Queensland and Western Australia allow claimants to apply to the court for leave to commence proceedings in respect of previously settled claims.  Those claims may have been settled some time ago and the insurers which were on risk at the time of settlement may no longer exist. Entities should enquire with their current insurers how such claims would be treated by them under their current insurance policy and clarify to what extent they are required to disclose previous settlements.

For more information on the National Redress Scheme for institutional child sexual abuse, you can read our earlier article here.