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Published: 28 April 2015
Author: Ryan Carlisle Thomas
The Victorian Government is in the middle of enacting several recommendations of the Betrayal of Trust” Report, which was released following the Victorian Parliamentary inquiry into the Handling of Child Abuse by Religious and other non-government organizations.
The Crimes Amendment (Protection of Children Bill) was introduced in 2014 by the Napthine Government as an amendment to the Crimes Act 1958. The legislation creates two new criminal offences.
Firstly, already enacted, is the offence of failure to disclose sexual offence committed against a child. The offence applies to anyone over the age of 18 who fails to report child abuse in Victoria to Police. The offence is punishable by 3 years imprisonment. A number of exceptions apply under the legislation.
The second offence is failure to protect a child from sexual abuse by a person in a position of responsibility within an organisation. This applies when a person fails to take action to protect a child where they know someone poses a risk of child abuse. The offence is punishable by 5 years in jail. This offence has not yet come into operation.
At the time when the initial legislation was introduced, the former Attorney General Robert Clark said the new offences redefined the legal framework for responding to the risk of child sexual abuse and create a ‘community wide duty’ to report it to Police.
The offences do not apply retrospectively, prior to enactment. The offences also do not apply to child abuse disclosed during religious confession - an exception that has caused some controversy in the wider community.
Other recommendations from the Betrayal of Trust report inquiry in relation to civil justice are also in the process of becoming law. The Limitations of Actions Amendment (Child Abuse) Bill 2015 has passed through both houses of Parliament and received Royal Assent on 21 April 2015. It is now awaiting proclamation to become operative.
The Bill amends the Limitations of Actions Act 1958 to remove limitation periods that apply to actions in respect of personal injury caused by child abuse. The Act, as it currently appears, has been a significant barrier for survivors of abuse who wish to bring common law claims against institutions. It has meant that most survivors of historical child abuse are prevented from issuing civil proceedings without first obtaining an extension of time from a court.
The Act will soon be amended in a way that means civil actions may be brought at any time after the date on which the abuse occurred that resulted in injury. Importantly, it will apply retrospectively. In practice, this could mean that a significant hurdle is eliminated for survivors.
It is noteworthy that under the new legislation, a court will have the power to dismiss or permanently stay proceedings where the passing of time means that a fair trial is not possible. An example given in the Explanatory Memorandum is a situation “where crucial evidence has deteriorated or is lost over time”. This provision may become a new battleground in civil claims.
Ryan Carlisle Thomas is optimistic the Victorian Government will introduce additional legislation which will improve access to civil claims and compensation for child abuse survivors, including the incorporation of religious organisations and a duty to prevent intentional criminal acts. The Royal Commission’s report on redress and civil litigation is due in July 2015.
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