Legal Identity of Defendants (Organisational Child Abuse) Bill 2018


Debate resumed from 1 May; motion of Mr JENNINGS (Special Minister of State).

Mr RICH-PHILLIPS (South Eastern Metropolitan) (16:17:50) — I am pleased to rise this afternoon to make a contribution on the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018. This is a fairly unique piece of legislation in what it sets out to do in putting a framework around unincorporated associations that have been implicated in child abuse.

The genesis of this bill goes back to an inquiry undertaken in the last Parliament by the Family and Community Development Committee, which was the inquiry into the handling of child abuse by religious and other non-government organisations. It took the short title of the Betrayal of Trust report. I must say it is one of the most remarkable things in my period as a member of this Parliament that that report from the Family and Community Development Committee, which was chaired by Ms Crozier, who did an outstanding job of chairing that incredibly complex inquiry in the previous Parliament, that body of work by that all-party parliamentary committee, has gone on to have such an incredible impact on policy development and legislation development not only here in Victoria but in other jurisdictions around Australia as well.

It was of course that Betrayal of Trust report that went on to trigger a royal commission at the commonwealth level that looked at child sex abuse in institutions. That has also had flow-on effects. But it is a great credit to that committee — the Family and Community Development Committee of the 57th Parliament — that they were able to produce such a comprehensive report on what is an incredibly complex policy issue and to do so in a way which had support across the Parliament and which has been recognised by successive governments as being such a valuable body of work that has formed the basis of a number of policy reforms and legislative reforms that we have seen come before this Parliament.

That inquiry was initiated by the Baillieu government in 2012, I think it was, and the results of that were delivered to the Napthine government in 2014, which then commenced the work arising from that inquiry, which has now been carried forward by the current government. The bill we see before the house this afternoon is just the latest example of legislative change arising from that excellent piece of work by the Family and Community Development Committee of the previous Parliament.

To outline the bill that we are dealing with this afternoon, the purpose of the bill is to allow the alleged victims of child abuse to sue unincorporated non-government organisations, which are defined in the bill, which use trusts or have trusts available to them for the conduct of their activity. Turning to the main provisions of the bill, clause 6 establishes a control test for determining whether a trust is an associated trust with respect to the non-government organisation (NGO) in question.

Clause 7 allows an NGO to nominate another entity to act as the proper defendant in respect of any litigation that is brought against the NGO with respect to child abuse as defined in the legislation. Clause 8 provides that if an NGO fails to nominate a proper defendant within 120 days of the commencement of proceedings against the NGO or the court determines that the entity nominated by the NGO is not capable of being sued or does not have sufficient assets to meet a judgement in the proceedings, then the plaintiff in those proceedings may apply for an order that the claim proceed against the trustees of another associated trust of the NGO.

Clause 9 allows the trustees of an associated trust to apply trust property to satisfy any liability incurred in a claim arising from child abuse against the NGO. It makes it clear that, notwithstanding the trust deed and notwithstanding the way the trust operates or the purpose of the trust, where a trust is brought into litigation as a consequence of this legislation it will be within scope for the trustees to apply trust assets to a determination of a court arising from child abuse. Clause 13 allows that proceedings for a claim arising from child abuse may be commenced or continued against an NGO pending the appointment of a proper defendant.

The coalition will support this bill. It does seek to implement recommendation 94 of the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, and it does build upon the work of the Betrayal of Trust inquiry of the Family and Community Development Committee. I would like to refer to some of the work which was undertaken by the Family and Community Development Committee in the previous Parliament, which actually looked in some detail at the issue of the way in which people who were the victims of child abuse, or alleged child abuse, were able to obtain some relief in the legal sense.

What was evident through that inquiry and through the royal commission was that many of the claims related to child abuse — or the many instances of alleged child abuse — had occurred many decades ago and had occurred at a time in the Australian community when the institutions which were subsequently found to have either condoned or failed to prevent child abuse were held in high regard. Because that abuse occurred at a time when those institutions were held in high regard — perhaps in too high regard, given the circumstances, which came to be proved — there was a reluctance of the victims of the child abuse to report it at the time it occurred. In many instances the abuse went unreported for decades and has continued to this day not to be reported and therefore not to be acted upon, either in a criminal sense with criminal prosecution and criminal charges relating to the abuse or in a civil sense, where a duty of care was breached by the entity that was also not addressed at the time.

The effluxion of time and the fact that many of these instances of abuse have only been brought to light publicly recently — many decades after they were alleged to have occurred — means that seeking civil relief has been complicated. For many parties, many victims or their families, who are seeking relief through the courts, the fact that the individuals who may have been involved in the abuse are no longer in positions of authority in the entities or may well be dead, or the structures of the entities in a legal sense may have changed, has meant that it has been a complicated and often frustrating path for victims to seek relief through the courts. That was one of the key areas that was recognised and highlighted in the Betrayal of Trust report and subsequently in the royal commission.

Chapter 26 of the Betrayal of Trust report focuses largely on this matter. In fact chapter 26 is 'Legal barriers to claims against non-government organisations'. This chapter sets out at some length a number of examples, and I will refer to two examples which are contained within that chapter, one of which goes directly to the bill which is before the house this afternoon.

Chapter 26 notes, as I said, that there are a number of legal barriers to claims of criminal child abuse in NGOs, and the key findings in chapter 26 are that:

Victims of … child abuse find it difficult to:

find an entity to sue because of the legal structures of some non-government organisations;

initiate action within the limitation period for child abuse cases specified in the statute of limitations;

establish that an organisation has a legal duty to take reasonable care to prevent child abuse by its members;

identify a legal relationship between the perpetrator and the entity;

convince courts that organisations should be subject to vicarious liability for criminal acts.

So the committee highlighted the complexity and difficulty that victims and their families had in obtaining relief decades on from the abuse and went on to make a number of recommendations. The recommendations include:

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 entitlement.


Working with the Australian government to require religious and other non-government organisations that engage with children to adopt incorporated legal structures.

The third was:

Amending the Limitation of Actions Act 1958 (Vic) to exclude criminal child abuse from the operation of the limitations period under that act.

The fourth was:

Undertaking a review of the Wrongs Act 1958 (Vic) and identify whether legislative amendment could be made to ensure organisations are held accountable and have a legal duty to take reasonable care to prevent criminal child abuse.

The approach the bill takes today is different to the recommendations of the Betrayal of Trust report. The committee report recommended that NGOs that were the subject of the broader consideration in the child abuse report be required to incorporate and fall within either the structures which are contained in the incorporated associations legislation in Victoria or the Corporations Act 2001 if they became a corporation under the commonwealth legislation.

What is being pursued with this bill is different. It is recognising that the structures of many of the non-government organisations are more complex than being simply standalone NGOs — many of them do have other associated trust structures attached to them — and accordingly seeks, for the purposes of obtaining relief for a victim of child abuse, for the purposes of litigation, to bring those structures together. Associated trusts are defined in the act, and I will have a couple of questions in relation to that operation when we get into committee and will seek some clarification on that. It will conceptually bring those trusts together with the NGO to put them within reach of a child abuse victim, or their family, who is seeking civil relief in the courts.

Among the reasons the committee made the recommendations it did and subsequently why we have this legislation today — even though, as I said, it does not follow the recommendations of the committee; it implements a different approach — were a couple of case studies which are set out in chapter 26 of the report and which are worth putting on the record again. I refer the house to Box 26.1 in the Betrayal of Trust report. It is described as a hypothetical case, but it was drawn from evidence which was brought before the committee. This example states:

In 1962, M, then aged 10 years, was sexually abused by Fr X at the presbytery in South Yarra. In 2013, M wants to issue proceedings against the Catholic Church in respect of the abuse. Fr X is deceased. In 1962, Archbishop A was responsible for supervising and monitoring all priests in the archdiocese, including Fr X. Archbishop A had long been aware of the criminal propensities of Fr X and had moved him from parish to parish, effectively concealing his activities and exposing the victim to abuse by him. Archbishop A is now also deceased, replaced by Archbishop B.

As the law currently stands, M could not sue either Archbishop B (the relevant office-bearer's successor) or the Catholic Church (an unincorporated entity).

This goes to the heart of what we are seeking to achieve with this legislation today. I spoke earlier in general terms of an offence occurring decades ago in a situation where we do not have an incorporated entity, the key office-bearers have changed over that period of time, the actual direct perpetrators are deceased and accordingly the capacity to obtain relief for the victim is limited, if it exists at all.

The second example is not a hypothetical case. It is actually a real case. It was referred to in the second-reading speech but I will refer to it in my contribution as well. This is a matter which came before the New South Wales Court of Appeal, and it is the matter of the Trustees of the Roman Catholic Church v Ellis & Anor of 2007. The committee has produced a summary of this report which I will put on the record. To quote:

Ellis alleged that a Catholic assistant priest sexually abused him in the 1970s, while he was an altar server. Ellis sued Cardinal George Pell (then archbishop of the Catholic Archdiocese of Sydney), the trustees of the Roman Catholic Church for the Archdiocese of Sydney, and the alleged abuser. The abuser died before the court heard the case.

At trial, the judge dismissed the case against Cardinal Pell, on the basis that the archbishop could not be held liable for the acts of his predecessor, but found that there was an arguable case that the trustees were the entity that the Roman Catholic Church in the Archdiocese of Sydney 'adopted and put forward' as its permanent corporate entity. The judge ordered that the statute of limitations be extended to allow Ellis to pursue the claim.

On appeal, the trustees argued successfully that they were not the proper defendants in the case. The Court of Appeal held that the trustees could not be sued because, at the time of the alleged abuse, there was 'simply no evidence that the trustees were involved in … pastoral activities'.

That is a summation of the case. My understanding of the committee report is it is not a direct quote of the judgement but is a summation of the judgement.

So in the Ellis case we have a situation where a victim has come forward, they have sought relief from the Catholic Church in the form of the then archbishop of the Sydney diocese and the court has held that, because the specific archbishop in 2007 who was party to the proceedings was of course not the party that committed the act some decades earlier, the then archbishop was not liable in that matter. The case against Cardinal Pell at the time was dismissed.

We also know from the example that the individual who perpetrated the offences had died, seemingly between proceedings being issued and the matter reaching court. So the person who had literally been responsible for the offence was dead by the time the court heard the matter and could not be held responsible. The archbishop of the day was held, understandably, not to be responsible for the acts of his predecessors. So to the extent that the archbishop as the head of the archdiocese in 2007 was held not to be responsible for the acts of the archbishop of the 1970s, this left only the trustees of the Catholic Church.

The court then recognised that the trustee of the Catholic Church holding those assets for the Catholic Church was not the party that was providing pastoral activities and therefore did not have the duty of care towards the plaintiff in relation to that matter. The separation between the archdiocese, the unincorporated entity which had been responsible for the pastoral activities and the trust behind the Catholic Church was sufficiently separate that that proceeding was unable to be concluded in favour of the plaintiff against the trustees.

So the committee report, having highlighted that as an example, made the recommendations around NGOs and particular church institutions, as their focus was largely on church institutions being incorporated. What we have before the house this afternoon is a different approach, which seeks to legally bring those trusts and trustees that may be associated with NGOs such as churches within the legal umbrella for the purposes of claims for cases of child abuse proceeding against churches and other NGOs.

The coalition believes this is an appropriate way to proceed. We think that tying the trusts to their respective NGOs for the purposes of civil proceedings in cases of claims with respect to child abuse is a positive step forward in ensuring that people who have been victims of child abuse, often many decades ago, and who have to date been denied civil relief because of the structures surrounding the institutions where they were victims can obtain the relief they are deserving of. This change that is being brought about by the bill today will help assist those victims in obtaining relief, and the coalition looks forward to this bill passing this afternoon.
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