In the rapidly changing area of institutional liability (abuse law), it is important to be across all of the various changes to legislation and case law in this area.

Following the Royal Commission into Institutional Responses to Child Sexual Abuse, which delivered its final report on 17 December 2017, various amendments have been made to the civil liability legislation in each jurisdiction to include specific provision for the liability of organisations for child sexual abuse. 

All states and territories have enacted amendments to the limitation legislation so that an action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child sexual abuse of the person, may be brought at any time and is not subject to any limitation period.

NATIONAL REDRESS SCHEME

The Australian government led the development of a national approach to redress for victims of institutional child sexual abuse. The National Redress Scheme (the Scheme) commenced on 1 July 2018 and was established under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (the Act). 

Under the Scheme, survivors of institutional child sexual abuse can seek redress in the form of financial payment, access to counselling, and a direct personal response, in relation to government institutions and participating non-government institutions. Payments are currently capped at $150,000 (s 4). There is provision for a $10,000 advance payment for priority applicants who are elderly, terminally ill, or there are exceptional circumstances justifying an advance payment (s 56B).

As part of the Scheme, applicants can choose to receive a direct personal response from the institution (which can also include details of what the institution has done to stop abuse from happening to anyone else). The Direct Personal Response Action Plan 2022 aims to improve the information and support provided to survivors, and to assist institutions to improve the quality of the direct personal responses they provide.

A new Australian Charities and Not-for-profits Commission (ACNC) governance standard requires all registered charities to take all reasonable steps to join the Scheme if an application has been made which names them or is likely to name them. Where a registered charity fails to join the Scheme or take reasonable steps to participate in the Scheme, they will be subject to the ACNC’s compliance powers, including deregistration.

NATIONAL APOLOGY, PRINCIPLES, AND STRATEGY

On 22 October 2018, the then Prime Minister, the Hon Scott Morrison MP, delivered the National Apology to Victims and Survivors of Institutional Child Sexual Abuse (the National Apology), in Parliament House in which he stated:

Today the Australian Government and this Parliament, on behalf of all Australians, unreservedly apologises to the victims and survivors of institutional child sexual abuse…Today, we apologise for the pain, suffering and trauma inflicted upon victims and survivors as children, and for its profound and ongoing impact.

In early 2019 the Australian Human Rights Commission released non-mandatory National Principles for Child Safe Organisations (National Principles). The National Principles aim to provide a nationally consistent approach to creating organisational cultures that foster child safety and reflect the 10 child safe standards recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

The Australian government also launched the National Strategy to Prevent and Respond to Child Sexual Abuse (2021–2030), a 10 year whole-of-nation framework which will be overseen by the National Office for Child Safety. The first phase of the National Strategy will be driven by 2, 4-year action plans called the First National Action Plan (National Plan) and the First Commonwealth Action Plan (Action Plan). 

SNAP-SHOT OF INSTITUTIONAL LIABILITY (ABUSE LAW) LEGISLATIVE PROVISIONS AROUND AUSTRALIA

As mentioned above, all states and territories in Australia have enacted various amendments following the Royal Commission into Institutional Responses to Child Sexual Abuse and in direct response to the recommendations contained within the Royal Commission’s Final Report. However, it has not been a “one size fits all approach”.

The following is a high-level comparison table, followed by a more detailed summary of the key legislative provisions across all jurisdictions.

New South Wales 

Limitation period

Amendments to the Limitation Act 1969 (NSW) removed any limitation period for child sexual abuse actions. Section 6A of the Act came in force in 2016 and applies retrospectively. Section 6A does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

Organisational liability

The Civil Liability Act 2002 (NSW) was amended to include provision for liability of organisations for child abuse. Part 1B of the Act imposes a duty of care on organisations exercising care, supervision or authority over a child to take reasonable precautions to prevent an individual associated with the organisation from perpetuating child abuse. Organisations are vicariously liable for child abuse perpetrated by employees: s 6H. Proceedings can be commenced against unincorporated organisations.

Setting aside historic settlements

Under Pt 1C, courts may set aside historic settlement agreements in claims for child abuse where it is just and reasonable to do so: s 7A. The effect of setting aside an affected agreement is that the agreement is void, but only to the extent that it relates to the plaintiff. Various exceptions apply: s 7E(2).

Other amendments

The 2021 amendments also removed any restrictions that had prevented survivors from bringing civil claims if the abuse had occurred while they were in custody in juvenile justice facilities: s 26B(2A).

Awarding damages

Damages for causes of action arising out of child sexual abuse are to be assessed under the common law without the restrictions and limitations set out in the Act: s 3B(1)(a).

Key Legislation

• Limitation Act 1969 (NSW), s 6A.
• Civil Liability Act 2002 (NSW), ss 3B(1)(a), 6C, 6D, 6E, 6F, 6G, 6H, 6K, 6L, 6M, 6N, 6O, 6P, 7C, 7D, 7E, 7F.

Victoria

Limitation period

Amendments to the Limitation of Actions Act 1958 (Vic) removed any limitation period for child sexual abuse actions. Division 5 came into force in 2015 and applies retrospectively.

In circumstances where a cause of action was previously barred or settled, under s 27QA(1) a new action may be brought even if an action on the cause of action was previously dismissed on the grounds of an expiry of any applicable limitation period, or by refusing to extend any applicable limitation period, or previously settled. There are some exclusions: s 27QA(3).  

Division 5 does not limit the court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 27R.

Organisational liability

The Wrongs Act 1958 (Vic) was amended to include provision for liability of organisations for child abuse. Part XIII imposes liability on organisations, that a relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation: s 91.

Provision is also made for circumstances where the relevant organisation has delegated the care, supervision or authority over the child to whom the claim relates to any organisation or to a specified carer and a permanent care order in respect of the child has not been made: s 90(c) and (d).

The principles of negligence in Pt X apply to claims brought in reliance on the duty in s 91: s 89.

Legal identity of defendants

The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) applies to any proceeding for a claim founded on or arising from child abuse, against a non-government organisation (NGO): ss 4, 7.

Setting aside historic settlements

A victim of historic child sexual abuse may bring an action on a previously barred cause of action or previously settled cause of action, even if an action on the cause of action was previously dismissed on the grounds of an expiry of any applicable limitation period, or by a court previously refusing to extend any applicable limitation period. 

Awarding damages

Awards of damage where the fault concerned is sexual assault or other sexual misconduct, are excluded from the application of Pt VB of the Wrongs Act 1958 (Vic), which otherwise regulates and restricts the award of damages in negligence claims: ss 28C, 28LC.

Key Legislation

• Limitation of Actions Act 1958 (Vic), ss 27O, 27OA, 27P, 27Q, 27QA, 27QB, 27QC, 27QD, 27QE, 27QF, 27R.
• Wrongs Act 1958 (Vic), ss 28C, 28LC, 88, 89, 90, 91, 92, 93.
• Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 3, 4, 7, 8.

Western Australia

Limitation period

Amendments to the Limitation Act 2005 (WA) removed any limitation period for child sexual abuse actions. Section 6A came into force in 2018 and applies retrospectively. 

Section 6A is not intended to limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 6A(5). 

Organisational liability

The Civil Liability Act 2002 (WA) was amended to include provision for liability of organisations for child abuse. Part 2A imposes a duty of care on organisations (including unincorporated institutions) exercising care, supervision or authority over a child to take reasonable precautions to prevent an individual associated with the organisation from perpetuating child abuse: s 15B.

There are provisions in the Act for continuity of institutions: ss 15F, 15G, 15H.

Legal identity of defendants

Part 2A provides a statutory requirement for a proper defendant to be appointed for cases against unincorporated associations, and any liability that would have been established against a former officer holder is taken to be held against a current officer holder.

Setting aside previously barred or settled actions

An action on a previously barred cause of action may be commenced even if the action was statute barred before commencement day, or had commenced but was discontinued or not finalised, or a judgment was given on the ground that the action was statute barred, or it was dismissed on the ground that it was statute barred: s 91.

The court may, if satisfied that it is just and reasonable to do so, grant leave to commence the action and to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement: s 92(3).

Key Legislation

• Limitation Act 2005 (WA), ss 6A, 90, 91, 92.
• Civil Liability Act 2002 (WA), ss 15A, 15B, 15C, 15D, 15E, 15F, 15G, 15H, 15I, 15J, 15K, 15L, 15M.

Queensland

Limitation period

Amendments to the Limitation of Actions Act 1974 (Qld) removed any limitation period for child sexual abuse actions. Subsection 11A(1) came into force in 2016 and applies retrospectively.

The amendments preserved the power of the court to dismiss or stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: 11A(5).

Organisational liability

The Civil Liability Act 2003 (Qld) was amended to include provision for liability of organisations for child abuse. Chapter 2, Part 2A imposes liability on organisations, that a relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation: s 33D.

If a person associated with an institution abuses a child while the child is under the care, supervision, control or authority of the institution, the institution is taken to have breached its duty under s 33D unless the institution proves it took all reasonable steps to prevent the abuse: s 33E.

Legal identity of defendants

Division 3 provides a statutory requirement for a proper defendant to be appointed for cases against unincorporated associations, and any liability that would have been established against a former officer holder is taken to be held against a current officer holder.

Setting aside previously barred or settled actions

Under s 48 of the Limitation of Actions Act 1974, a victim of historic child sexual abuse may bring an action on a previously barred cause of action or previously settled cause of action, even if an action on the cause of action was previously dismissed on the grounds of an expiry of any applicable limitation period, or by a court previously refusing to extend any applicable limitation period: s 48(2), (3), (5A).

Key legislation

• Limitation of Actions Act 1974 (Qld), ss 11A, 48.
• Civil Liability Act 2003 (Qld), ss 33A, 33B, 33C, 33D, 33E, 33F, 33G, 33H, 33I, 33J, 33K, 33L, 33M, 33MA, 33N, 33O, 33P, 33Q.

South Australia

Limitation period

Amendments to the Limitation of Actions Act 1936 (SA), removed any limitation period for child abuse actions. Part 1A came into force in 2018 and applies retrospectively. Part 1A does not limit the court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 3A(4).

Organisational liability

The Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA) amended the Civil Liability Act 1936 by adding Pt 7A as to the institutional liability for child abuse, including a duty of institutions to prevent child abuse and the vicarious liability of institutions, as well as enabling claims against unincorporated organisations.

Previously barred or settled causes of action

Part 7B allows for the setting aside of previously settled causes of action to which s 3A of the Limitation of Actions Act 1936 applies or in respect of an abuse claim (within the meaning of Part 7A of the Civil Liability Act 1936).

A person who, because of an affected agreement, is prevented from commencing or maintaining proceedings on a cause of action in respect of an abuse claim may commence proceedings and apply to the court to set aside the affected agreement: s 50W. 

Key legislation

• Limitation of Actions Act 1936 (SA), s 3A.
• Civil Liability Act 1936 (SA), ss 50A, 50B, 50C, 50D, 50E, 50F, 50G, 50H, 50I, 50J, 50K, 50L, 50M, 50N, 50O, 50P, 50Q, 50R, 50S, 50T, 50U, 50V, 50W, 50X.

Australian Capital Territory

Limitation period

Amendments to the Limitation Act 1985 (ACT), removed any limitation period for child abuse actions. Div 2.2A came into force in 2016 and applies retrospectively.

Division 2.2A does not limit the court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 21C(3)

Organisational liability

The Civil Law (Wrongs) Act 2002 (ACT) was amended in 2018 and a new Ch 8A - Institutional Child Abuse was added.

For the purposes of Ch 8A, “child abuse” is defined to mean physical or sexual abuse of a child: s 114A(1).

Legal identity of defendants

The Act as amended enables the proper identification of a defendant. Actions for historic child sexual abuse can be commenced against institutions in the name of their current office holders. The provisions apply to unincorporated institutions.

Setting aside historic settlements

There are currently no legislative provisions for a victim of historic child abuse to bring an action on a previously barred cause of action or previously settled cause of action.

Key legislation

• Limitation Act 1985 (ACT), s 21C.
• Civil Law (Wrongs) Act 2002 (ACT), ss 114A, 114B, 114C, 114D, 114E, 114F, 114G, 114H.

Tasmania

Limitation period

Amendments to the Limitation Act 1974 (Tas) removed any limitation period for child abuse actions. The Limitation Amendment Act 2017 added a new s 5B, which came into force in 2017 and applies retrospectively.

Nothing in s 5B limits the court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 5B(3).

Organisational liability

The Civil Liability Act 2002 was amended and a new Pt 10C Child Abuse — Liability of Organisations Division was added.

Importantly s 49D states that nothing in Pt 9 - Liability of public and other authorities, protects a person from civil liability arising under this Part or places any restriction or limitation on an award of damages made in pursuance of this Part. An organisation is vicariously liable for child abuse perpetrated against a child by a person who is an employee of the organisation: s 49J.

An employee includes an individual who is akin to an employee of the organisation. An individual is akin to an employee of an organisation if the individual’s role within the organisation is for the aims or purposes 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: s 49I

An organisation and any successor of that organisation are, for the purposes of Pt 10C, taken to be the same organisation: s 49E

Legal identity of defendants

The Act as amended enables the proper identification of a defendant. Actions for historic child sexual abuse can be commenced against institutions in the name of their current office holders. The provisions apply to unincorporated institutions: ss 49K–49S.

Setting aside historic settlements

A victim of historic child sexual abuse may bring an action on a previously settled relevant right of action if a relevant court, by order on application, sets aside the agreement effecting the settlement, on the grounds that it is in the interest of justice to do so: s 5C.

Key legislation

• Limitation Act 1974 (Tas), s 5B.
• Civil Liability Act 2002 (Tas), ss, 49A, 49B, 49C, 49D, 49E, 49F, 49G, 49H, 49I, 49J, 49K, 49L, 49M, 49N, 49O, 49P, 49Q, 49R, 49S.

Northern Territory

Limitation period

Amendments to the Limitation Act 1981 (NT) removed any limitation period for child abuse actions. Section 5A came into force in 2017 and applies retrospectively. 

Nothing in s 5A limits the court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible: s 5A(5).

Organisational liability

The Personal Injuries (Liabilities and Damages) Amendment Act 2022 (NT) amends the Personal Injuries (Liabilities and Damages) Act 2003 by adding Part 3A - Institutional liability for child abuse. 

The provisions in Part 3A are similar to those already enacted in other jurisdictions, however they are set to commence by March 2024.

Key legislation

• Limitation Act 1981 (NT), s 5A.
• Personal Injuries (Liabilities and Damages) Amendment Act 2022 (NT), ss 10, 11, 12.

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