Did the legislative reforms and redress scheme for CSA survivors go far enough?

Several legislative reforms have taken place since the Royal Commission into Institutional Responses to Child Sexual Abuse (CSA) released its final recommendations in 2017, with Victoria and New South Wales being among the first to implement them.

However, what exactly does this mean for your clients – who are survivors of institutional CSA – seeking legal redress? There’s been plenty of commentary around whether or not the changes have gone far enough and what it means for the future of governing the not-for-profit sector.

Sometimes these questions are well worth posing to the experts, so I approached Derek Mortimer, lawyer and legal author of Not for Profit Best Practice Manual, to gather his commentary on this topical issue for Legal Insight.

Whether your client is looking to access charitable trust funds through the redress scheme or you are a legal adviser in the not for profit sector, Derek’s informed commentary provides a fresh perspective. For the purpose of clarity, Derek refers to Victorian legislation only, however, this commentary may still apply to other states such as New South Wales in which the changes are similar.

Hurdles survivors previously faced when seeking legal redress

In September 2015 the Royal Commission released its final recommendations on redress and civil litigation, dubbed the Redress and Civil Litigation Report.

“These are the three main areas I have found, according to the Royal Commission that made it hard for survivors to seek legal redress,” said Derek. They include:

  1. By the time the survivor’s trauma resurfaces, often 20-30 years later, the perpetrator may have passed away.
  2. In faith-based organisations, the perpetrator may have taken a vow of poverty and may have given up any assets (which could be called upon as compensation for the survivor).
  3. It was difficult to prove the tortious liability of an institution: whether the institution had a duty of care and if so what that standard of care should be.

Recap on the main legal reforms in Victoria

In response to the problems stated above, the Victorian government tweaked the following legislation, which in turn improved the ability for survivors to take legal action against their perpetrators. Three main changes occurred, meaning:

  • The Limitations of Actions Amendment (Child Abuse) Act 2015 (Vic) which previously placed a statutory limitation period on trauma resurfacing years after the offence, that limitation now no longer applies in respect of child abuse.
  • The onus of proof in the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) was reversed. This means “relevant organisations” that don’t have “reasonable” systems in place for the safety of children, will be exposed to liability.
  • Asset rich trusts associated with an unincorporated entity that had employed or supervised a perpetrator could be nominated by the unincorporated entity as a “proper defendant” to compensate the CSA survivor. This reform came from the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) (the 2019 Act).

Finally, but by no means a small part of the picture, is the national redress scheme.

“The redress scheme is not just about money but equal access to assistance by seeking apologies from relevant institutions and ongoing counselling,” added Derek.

In a bid to encourage institutions to stay accountable in this area, the government has set up a “naming and shaming” list for the public to access here.

FAQs answered by not for profit legal author Derek Mortimer

Have the reforms made it easier for survivors to find and nominate a proper defendant?

Yes, in Victoria all a survivor needs to do to institute proceedings, is submit their claim and if the unincorporated NFP fails to nominate a proper defendant within 120 days, they are in breach of s 7 of the 2018 Act.

The effect of s 7(3) of the 2018 Act, is that if an unincorporated NFP does not nominate a defendant within 120 days, the plaintiff can apply to the court, which can step in and nominate a proper defendant.

What is required to sue the defendant?

To be sued, a NGO must be an unincorporated entity that – but for being unincorporated – would have been capable of being sued and found liable for a claim arising from CSA.

But here’s the catch: even if the unincorporated entity could be sued, it might not have any assets. Section 4 of the 2018 Act requires the unincorporated entity to be capable of being sued and found liable (if it hasn’t been incorporated), and needs to control one or more associated trusts. These property trusts must contain assets which can be called upon as compensation.

What are the costs and benefits of imposing a duty of care on organisations to prevent CSA?

For some there is a real concern that people aren’t going to volunteer, donate or contribute property or assets during their lifetime or leave gifts in their will to institutions, if they are going to be used to pay out survivors of CSA.

However, the benefit of having a duty of care statutorily enforced, is the opportunity it provides to rebuild public trust and confidence.

The reversal of onus of proof legislation can expose processes which aren’t supportive of concerns being articulated in the first place and put in protocols which are actually going to work, rather than just a PR exercise. It acknowledges that the concerns of survivors of CSA are real and institutions are working hard to address those concerns. This can only help restore public trust and confidence.

Having protocols in place can only democratise some of these institutions and take away the clericalism of the Catholic Church where all authority can be perceived to vest in the bishops or cardinals rather than the boards of management of the entities. It contributes to a change in culture.

What are the problems with extending vicarious liability?

One issue that often gets raised is whether members of the clergy are considered as employees. For instance, is the Archbishop an employee? The Royal Commission’s answer to this, is that they are not just employees but also members of institutions. So it’s the institution itself which should have a duty of care.

That’s one way perpetrators previously got away with what they they did, as they said I’m in a position of authority within the organisation (even though they were acting totally outside their authority) that’s how they derived their credibility. That’s why vicarious liability should rest with institutions as it stops people hiding behind those institutions.

Do you think the legal reforms go far enough?

This may not be a popular opinion. Because the Royal Commission went about its work with such forensic detail, I believe the Royal Commission did go far enough. I appreciate that some survivors may disagree with that. But given the forensic detail of the Royal Commission, it is probably fair to say they probably couldn’t do much more in regards to retrospective past wrongs. The real challenge is what happens from now on. Now it’s about cultural change within NFPs.

Leaders need to proactively address complaints quickly and fairly, to prevent the kind of long lasting damage to survivors to date. These are the bigger challenges, the cultural changes that need to occur around governing not-for-profits.

Derek Mortimer is the major contributing author of Not-for-Profit Best Practice Manual and principal lawyer of DF Mortimer & Associates. For more information on how state legislation can help survivors of CSA, please refer to the dispute management chapter of Not-for-Profit Best Practice Manual by Thomson Reuters.

If anything in this article has raised issues for you or if someone you know needs help, please contact:

  • Lifeline on 13 11 14
  • Kids Helpline on 1800 551 800
  • MensLine Australia on 1300 789 978
  • Suicide Call Back Service on 1300 659 467
  • Beyond Blue on 1300 22 46 36
  • Headspace on 1800 650 890
  • QLife on 1800 184 527

Liked this article? Check out Legal Insight’s legal commentary on how a recent High Court challenge to safe access zone laws turned out.

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