Yesterday, 7 March 2018, the Victorian Attorney-General, Mr Pakula, introduced the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 (Vic) (the “Bill”) into the Victorian Legislative Assembly. The purpose of the Bill is outlined in the explanatory memorandum:
“The purpose of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities, and to consequentially amend other Acts. The aim of the Bill is to respond to recommendation 26.1 of the Family and Community Development Committee of the Victorian Parliament's November 2013 Betrayal of Trust report.”
On 13 November 2013, the Betrayal of Trust report (the “report”) was tabled by the Family and Community Development Committee. This was the final report of the Victorian Parliament’s Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations. The purpose of this report was to investigate the “processes by which religious and other non-government organisations respond to the criminal abuse of children by personnel within their organisations” (report, p v).
This Bill aims to respond to finding 26.3 of the report. This finding, as per page 1 of the explanatory memorandum, suggests that:
"the lack of incorporation by non-government organisations that work with children can make it difficult for survivors of abuse in organisational settings to identify an appropriate entity to sue for damages.”
This difficulty occurs in the form of the “Ellis defence”, a defence first realised in 2007 by the New South Wales Court of Appeal, whereby the court found that unincorporated organisations which use trusts to conduct their activities do not legally exist, and therefore cannot be sued in their own right.
This Bill therefore purports to respond to this issue by implementing recommendation 26.1 of the report which states (report, Part H, p 536):
“That the Victorian Government consider requiring non-government organisations to be incorporated and adequately insured where it funds them or provides them with tax exemptions and/or other entitlements.”
The Bill purports to respond to recommendation 26.1 by creating the legislative means for “child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities” (section 1).
Section 7 of the Bill deals with the nomination of a proper defendant. This section allows unincorporated organisations, including religious institutions, to allocate a legal entity with sufficient assets for child abuse survivors to sue.
If the organisation does not nominate a legal entity for this purpose, the Bill then purports to give the court the power to appoint the unincorporated organisation’s trusts to be sued on their behalf, as per section 8 of the Bill.
Section 13 then provides for proceedings to be commenced against an NGO pending nomination or appointment of proper defendant (as per section 7).
With regard to the impact of the Bill, Attorney-General Martin Pakula stated in a media release on 6 March 2018:
“We’re changing the law so that all organisations, regardless of their legal structure, can be held to account for the harm caused to survivors of child abuse.
We have consulted closely with victim survivor groups, the courts, the legal profession and religious bodies to ensure that the reforms will deliver justice to victims.”
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Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 and explanatory material available from TimeBase's LawOne service.
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