19 June 2020: Tasmania introduces legislative reforms to prevent institutional child abuse and improve access to justice for survivors
The Justice Legislation Amendment (Organisational Liability for Child Abuse) Act 2019 (the “Act”) came into force on 1 May 2020. Introduced as part of the Tasmanian government’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Act has the potential to have far reaching consequences both in terms of the prevention of institutional child abuse and access to justice for Tasmanian abuse survivors.
Changes to the Civil Liability Act 2002
The Act introduces amendments to the Civil Liability Act 2002 including:
- Providing a definition of child abuse to bring clarity to an organisation’s duty to protect children
- Imposing a statutory non-delegable (non-transferable) duty of care on all organisations such that they must accept liability for abuse perpetrated by individuals associated with their organisation, including (but not limited to) office holders, employees, owners, volunteers, contractors or religious leaders where that person has:
- authority, power or control over the child; or
- the trust of the child; or
- the ability to achieve intimacy with the child.
It should be noted that this duty is not retrospective.
- Reversing the onus of proof so that in cases of abuse by an individual associated with an organisation, it will be presumed that the organisation has breached its duty of care unless the organisation can prove it had taken reasonable steps to prevent the abuse. As the Royal Commission noted, this reform also has the potential to bring about cultural change, including higher standards of governance and risk mitigation “both through [organisation’s] own efforts and through their compliance with the requirements of their insurers.”
- Extending the common law as it applies in relation to vicarious liability for the perpetration of child abuse to include employees as well as individuals that are 'akin to employees'. An individual is 'akin to an employee' if their role within the organisation:
- is for the aims or purpose of the organisation; and
- gives the individual authority, power or control over a child, or enables the individual to achieve intimacy with, or the trust of, a child.
This means that an organisation will be liable for an individual that perpetrates child abuse if their offending is facilitated by their employment with the organisation.
- Enabling child abuse proceedings to be brought against unincorporated organisations that could not previously be sued due to lack of 'legal personality' such as church groups.
Changes to the Limitation Act 1974
The Act also amends the Limitation Act 1974 allowing courts to set aside a previous settlement between an organisation and a survivor where it is in the interests of justice to do so having regard to:
- a) the amount of the agreement;
- b) the relative strengths of the bargaining positions of the parties;
- c) any conduct, by or on behalf of the organisation to which the agreement relates that the Court considers to be oppressive.
In her address to parliament, the Attorney General the Honorable Elise Archer pointed out that this reform is in addition to the recommendations of the Royal Commission and noted that:
One of the impacts of limitation periods is that survivors of child sexual abuse were generally prevented from pursuing civil law claims for their abuse. Given the operation of limitation periods, the settlement payments that were offered [to] survivors of child sexual abuse were low. This amendment seeks to remove these barriers for survivors, allowing the commencement of civil litigation in pursuit of a settlement.
Despite these important changes and numerous commitments to do so, the Tasmanian Government has thus far failed to establish a protocol for informal settlement conferences for survivors of abuse while in the care of the State of Tasmania. What this means is that in many cases victims of abuse in state care have no other option but to resort to the costly, time consuming and retraumatising option of formal litigation, or settle for an amount of compensation under the National Redress Scheme that is significantly less than their claim is worth.
It is hoped that the introduction of these important legislative changes will see the Tasmanian government finally honouring its commitment to enable and enhance access to justice for survivors of child physical and sexual abuse by managing civil claims against the State in a timely, supportive and trauma informed way.
If you or someone you know was abused in a Tasmanian institution, whether or not there has already been a payment of compensation in relation to the abuse, contact Angela Sdrinis Legal for free and confidential preliminary advice.
By Rowena Macdonald
Solicitor at Angela Sdrinis Legal