Changing Duty of Care and the Onus of Proof in Victoria's Organisational Child Abuse Cases

Tuesday 17 July 2018 @ 9.50 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

Wrongs Amendment (Organisational Child Abuse) Act 2017 (‘the Amendment’) is the first Australian law to introduce a positive duty of care onto organisations to take reasonable precautions in order to prevent child abuse.

The Amendment is a response to the Victorian Government’s Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations, which on 13 November 2013, delivered the Betrayal of Trust Report (“the Report”). The Report investigated child abuse in non-governmental and religious organisations and found that further law reform was required to assist in the reporting of and response of child abuse in these organisations. The Victorian Department of Justice and Regulation sums up the Report’s findings as to why the creation of such a duty was necessary, stating that

“organisations should have a clear legal duty to take appropriate measures to minimise the risk of abuse that arises because of the creation of relationships of trust for which they are responsible[.]"

 

Changes

The Amendment itself states:

“[that t]he purposes of this Act are—
(a)    to amend the Wrongs Act 1958 to impose a duty of care that forms part of a cause of action in negligence on organisations exercising care, supervision or authority over children to prevent the physical abuse or sexual abuse of those children committed by individuals associated with those organisations; and
(b)   to make consequential amendments to the Victoria Police Act 2013.”

Under the Amendment, Plaintiffs will have a clear cause of action when commencing legal proceedings against organisations. The onus of proof will fall onto the organisation, to prove that reasonable precautions were taken to prevent this abuse from taking place. The Amendment, in summary, introduces a positive duty of care to organisations and reverses the onus of proof in these cases, reducing legal barriers for survivors.

The Amendment will affect organisations that care for, supervise and/or have authority over children. The duty of care imposed on these organisations relate to physical and/or sexual abuse of a child committed by individuals that are associated with the organisation. This duty of care also applies in situations where the care of, supervision and/or authority of the children is delegated to another organisation. The Victorian Department of Justice and Regulation explains,

“[f] or example, if a school sends its students to a privately run camp and a member of the camp’s staff abuses a student, the school is required to prove that it took reasonable precautions to prevent that abuse.”

The Amendment has not defined what reasonable precautions require of organisations. This will depend on a range of factors subject to the individual facts of each case. Things such as the type of the organisation, the position of the abuser and the context under which the child is associated to the organisation will be taken into account. However, courts have in the past considered the following measures to have met this threshold; employment screening, early warning systems of abuse, random inspections and so on.

 

Additionally

The Amendment commenced on 1 July 2017 and applies to abuse occurring on or after this date.

This Amendment is also in line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that released their final report on 15 December 2017.

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