Wrongs Amendment (Organisational Child Abuse) Bill 2016


Debate resumed from 7 February; motion of Ms MIKAKOS (Minister for Families and Children).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to rise to make some remarks on the Wrongs Amendment (Organisational Child Abuse) Bill 2016. This bill arises from the work in 2013 of the Family and Community Development Committee on the issue of institutional child abuse. This was work commissioned by the previous coalition government and led by Ms Crozier in this place as then chair of the Family and Community Development Committee. It led to the groundbreaking Betrayal of Trust report, which is one of the most significant parliamentary committee reports produced in the Parliament of Victoria in recent years, and went a long way to providing an outlet, an opportunity for those citizens of Victoria who had been subjected to child abuse in an organisational setting to highlight their experiences and to see the first glimmers of justice that they had been denied throughout their lives prior to that work being undertaken.

It was of course the fantastic work of that parliamentary committee that ultimately led to the federal government, and indeed the Victorian government in parallel, establishing the royal commission that is currently on foot looking at child abuse. It is a great credit to the parliamentary committee system and indeed to Ms Crozier and the members of her committee at the time that that work was undertaken and that it was such a groundbreaking piece of work both here in Victoria and around Australia.

One of the recommendations from that Betrayal of Trust report is recommendation 26.4 with respect to the issue of organisations where child abuse occurred having a duty of care imposed upon them for the actions of individuals in their organisation. This was recognition that so much of what had taken place in an organisational setting in relation to child abuse had been attributed to the acts of individuals. We had seen time and time again over many decades leading up to that inquiry — and indeed continuing to this day with the Royal Commission into Institutional Responses to Child Sexual Abuse — institutions in which abuse had taken place seeking to deflect any responsibility from the institution, deflect any liability from the institution, and attribute responsibility to the individuals in the institution who may have been perpetrators of child abuse, without the institution itself accepting any responsibility.

The Betrayal of Trust report recommends that a duty of care be established for organisations which are exercising care, supervision or authority over children, and that recommendation was supported in principle by the coalition government in its response to the Betrayal of Trust report. The bill we have before the house this afternoon gives effect to that recommendation. The bill will amend the Wrongs Act 1958 to impose on organisations a new and additional statutory duty of care in relation to organisations which are exercising care, supervision or authority over children to prevent physical abuse or sexual abuse. So the bill will establish a statutory duty of care to prevent physical or sexual abuse of children who are in their care, supervision or authority.

The bill is a relatively short bill. It amends the Wrongs Act. It seeks to insert a new section 90 into the Wrongs Act which outlines that for an individual to be associated with a relevant organisation this includes if they are an officer, an office-holder, an employee, an owner, a volunteer or contractor, a minister of religion or religious leader. It establishes the relationship between the individual who may be the perpetrator and the relevant organisation, so if any person is in a relationship of that nature with the organisation — an employee, an owner, a volunteer et cetera — and child abuse occurs in that setting, then that will create the nexus between the individual perpetrator and the organisation with which they are associated.

The key clause of the bill inserts a new section 91 into the Wrongs Act. This imposes a duty of care that forms part of a cause for action in negligence on a relevant organisation to prevent the abuse of a child by any associated individual while the child is under their care. Importantly it provides that the burden of proof will be shifted in a proceeding such that on proof that abuse has occurred the organisation is presumed to have breached its duty of care unless it can prove on the balance of probabilities that it took reasonable precautions to prevent the abuse in that particular case.

The other substantive provision is a new section 92, which provides that if an entity is not capable in law of being sued, it may nominate, with the consent of the nominee, a legal person that is so capable as the appropriate defendant for the purposes of a claim. So this is a very important step from the Betrayal of Trust report in establishing that organisations will have a statutory duty of care in respect of the children in their care, supervision or authority to prevent physical and sexual abuse, that that duty of care extends to associated individuals as defined in the bill, and that encompasses all the types of relationships that we have heard about time and time again through the inquiry that led to the Betrayal of Trust report, through the royal commission — being staff in institutions, being religious leaders, being teachers et cetera. The bill establishes very clearly that an individual is associated with an organisation in that way and that does trigger the statutory duty of care. Importantly, where the abuse is proved, the burden sits on the organisation to demonstrate on the balance of probabilities that it took reasonable precautions to prevent that abuse. So they are presumed to be negligent, to have breached their duty of care, unless they can prove on the balance of probabilities that they took appropriate action.

An amendment like this to the Wrongs Act is not taken lightly. Anything that seeks to reverse the burden of proof is a significant step. Anything that seeks to attach liability to a party who does not perpetrate an action is a substantial step. That said, there are already provisions in the Wrongs Act which do this, but having regard to the circumstances which have come to light through the Betrayal of Trust report and which continue to come to light through the royal commission, linking the actions of an associated individual with the institution for the purpose of negligence and an action in negligence is an appropriate step. Likewise, providing that where the abuse is proved there is a presumption that the institution was negligent is also an appropriate step given the nature of these cases and the way they have been continuously denied by relevant organisations over a long period of time.

I note that the Law Institute of Victoria has raised some concerns that reversing the burden of proof, as this legislation does, is an unusual step which is not to be taken lightly. But given the circumstances which have given rise to this legislation which were canvassed extensively in the Betrayal of Trust report and which continue to be of concern to the community, as we see with the royal commission, the coalition believes that this is an appropriate course of action. It does reflect recommendation 26.4 of the Betrayal of Trust report which was supported in principle by the previous coalition government. Accordingly, we will not be opposing this legislation.
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