Duty of care strengthened

New Victorian laws have been introduced that will make it easier to establish that certain organisations owe a duty of care towards children under their supervision and care. The amendments will effectively make it easier to sue bodies such as religions institutions, childcare facilities, community organisations and government bodies for compensation.

The newly enacted Wrongs Amendment (Organisational Child Abuse) Act 2017(“the Wrongs Amendment Act”) has reversed the “onus of proof” that will require organisations to prove that they took reasonable precautions to prevent abuse occurring.

The new laws will make it easier to hold these organisations accountable and for survivors of child sexual abuse to sue them for compensation. The amendments clarify, to a certain extent, when survivors might be able to recover compensation against an organisation for child abuse perpetrated by its staff or personnel.

Other changes address “grooming” of children and the potential use of social media in child sexual abuse.

The changes are partly in response to the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, and the report Betrayal of Trust which resulted from the Victorian Government’s Inquiry into the handling of Child Abuse by Religious and Other non-government organisations.

Duty of care changes – how do they work?

Generally, to bring a claim for compensation as a result of negligent conduct, a duty of care owed to the survivor must be established.

This is usually done by applying relevant case law but is also founded in statutory regimes such as the Children’s Welfare Act 1954 (Vic). Under section 91(3) of the Wrongs Amendment Act, an organisation is now considered to have breached its duty of care to a child under its care if:

(a) there is proof that the abuse occurred and

(b) the abuser was associated with the organisation.

This broad amendment effectively lowers the legal barriers for abuse survivors to sue organisations that have been negligent in their duties of care, supervision and authority over children.

Proving abuse occurred when documents have been destroyed

Survivors can still face hurdles when it comes to proving that historical child abuse occurred. The common hurdle is that documents created by an organisation are destroyed. In accordance with relevant legislation, documents are often destroyed after seven years.

While a lack of documentation is an issue in proving abuse, it can in our experience be overcome by obtaining statements in support from people who may have witnessed the abuse or experienced abuse of a similar nature.

Public records can also help establish that an abuser in question was in fact a part of organisation in some way.  In our experience model litigants can be been helpful in providing employment histories for organisations that they are legally responsible for.

Ryan Carlisle Thomas supplements the public record by maintaining an extensive sexual abuse data base in which we hold evidence and the profiles of organisations linked to offenders can also help overcome this obstacle.

Some defences remain for organisations

While the new legislation strengthen’s an organisation’s obligations towards children, it is not all a one-way street.

The Wrongs Amendment Act allows these organisations to argue that reasonable precautions to prevent abuse were taken – note to section 91(3) of the Wrongs Amendment Act. For example, an organisation may be able to argue that it dealt with any abuse complaints appropriately or might be able to show that management tried to resolve a complaint of abuse, or have an abuse removed. This is known as the reverse onus of proof which Ryan Carlisle Thomas has discussed in previous commentary (Onus of proof to be reversed in Victorian child abuse cases).

Sexual abuse using social media now included

The Crimes Amendment (Sexual Offences) Act 2016 (“the Crimes Amendment Act”) has also been amended and strengthened, notably with specific reference to the role of social media in abuse.

While recent amendments have tightened the structure and substance of many offences that remained untouched since about the early 1990s, these new changes to the Crimes Amendment Act now address the failure of previous laws to keep up to date with new ways of offending.

The changes recognise that the offence of an indecent act now extends to sexual conduct directed towards a child through the use of technology, such as Skype or Snapchat. Although not entirely relevant to instances of historical child abuse, this may cause implications for organisations in the future.

In particular, it may mean that organisations that use online means to engage with children re-think their strategies.

Tougher on “grooming”

The definition of “grooming” a child for sexual abuse has now been extended.

Under section 45 of the Crimes Amendment Act, it is now a criminal offence to tell half-truths or lies in order to coerce a child to engage in sexual conduct. This offence might result in a term of imprisonment of 5 years.

Section 46 of the Crimes Amendment Act also criminalises grooming behaviour that involves giving a child a substance that might impair thought processes and therefore one’s ability to consent to sexual activity.

In summary

The Victorian Government should be congratulated for strengthening legal provisions  for both survivors of abuse. The changes will also make it more difficult in future for organisations to avoid legal responsibility for sexual abuse that is committed under their watch.

Reporting abuse

We encourage survivors to approach the Taskforce SANO division within Victoria Police who can assist with criminal investigations. Information obtained through such investigations can be helpful in civil claims for compensation that our Institutional Abuse team undertake. The Taskforce SANO can be contacted on 1800 110 007.

Additionally, if you were a victim of historical child abuse and would like further advice, please do not hesitate to contact our office on 1300 366 441.