The Royal Commission into Institutional Responses to Child Sexual Abuse has released it’s final report today on civil redress. Among other things, the report recommends that “the Australian Government should establish a single national redress scheme”. The report represents a significant departure from past practice and is likely to change the experience of survivors of child abuse across the country – when it comes to seeking redress, compensation and help in court.
“It is easy for a business to put the report to one side and consider it something we should look at if and when a situation comes up further down the track. The reality is that this report is page-after-page of warnings that the businesses and institutions of Australia must heed the experience of the Royal Commission and start putting their affairs in order, or suffer the consequences,” said Principal Lawyer and Special Counsel for Kernaghan & Associates, Aaron Kernaghan.
Equally significant are the major proposals to alter the way in which businesses and organisations are held accountable for the criminal conduct of their employees. These changes are already being noticed and we are even now providing advice to clients on the way in which their future liabilities may be greatly different to that which they have already faced. Indeed, we predicted this development in July 2014 and it has come to pass.
The Redress and Civil Litigation report contains 99 recommendations aimed at providing justice to victims of child sexual abuse in institutions.
The report contains recommendations in relation to the provision of effective redress for survivors through the establishment, funding and operation of a single national redress scheme and the provision of a direct personal responses to survivors by institutions.
“It also contains recommendations for reforms to make civil litigation systems more effective in providing justice for survivors,” said Mr Reed.
Mr Reed said that by reporting early, the Royal Commission seeks to give survivors and institutions more certainty on these issues.
“It also enables governments and institutions to implement our recommendations to improve civil litigation for survivors as soon as possible.”
Recommendations on redress contained in the report cover key elements of redress including the provision of a direct response, counselling and psychological care, and monetary payments. They also cover how redress should be provided including structure and funding.
Recommendations on civil litigation cover limitation periods and the duty of institutions.
Some of the recommendations promise significant changes to the field of civil liability for institutions (including private business and organisations). For example, one recommendation proposes that ‘reasonable likelihood’ should be the standard of proof for determining applications for redress (a lowering of the standard of proof from what it presently is).
Kernaghan, who has represented survivors, institutions, companies and defendants before the Royal Commission in New South Wales, Queensland and Victoria says that the change has been a long time coming but that now it is here, it can only be ignored at great risk to business.
“The truth is that for the greater part of our history, major reforms have come slowly, through the courts, and in such a way as to see the change on a case-by-case basis. These proposals provide not only a new framework for child abuse survivors having redress and compensation, it provides the strongest possible impetus to institutions and businesses across the country to get their operations correct and as robust as possible. The changes will be significant, not only for the public but for the lawyers who need to advise them, carefully and comprehensively,” said Aaron Kernaghan.
Further shocks to the system are likely to come from the following proposals which have far-reaching implications for the corporate and business world:
- 89. State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.
- 90. The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service:
- residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care
- day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs
- disability services for children
- health services for children
- any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care
- any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or kinship care.
- 91. Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.
- 92. For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the religious organisation.
- 93. State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively.
The potential changes are enormous and that is nothing compared to the uncertainty with which the report is likely to be greeted by the governments of Australia. Where to now for the law? Somewhere with higher standards of responsibility, accountability and liability for organisations.
“There will be a lot of speculation at this point about what the future of these recommendations are. But it’s beyond doubt that they will change the legal framework in which the businesses and institutions of Australia operate. We already are fielding calls from all over Australia from child-minding businesses, day care, community organisations and large scale business. We’ll have to wait and see if organised religious institutions seek to be as up-to-date with their knowledge as everyone else is trying to be,” said Aaron Kernaghan.
Most importantly, he said, the report clearly recognises the need for the change of law, the development of survivor rights and an increase in the responsibilities of organisations across the country. The emergence of responsibilities for not just public institutions like churches but also schools and private businesses who provide child services or opportunities (like theatre, dance and other forms of performing arts) are now well-and-truly a matter for national discussion and change in view of the efforts of this Royal Commission, he said.
For inquiries, call Aaron Kernaghan, toll-free on 1800-091-889 at Kernaghan & Associates Lawyers – Sydney, Melbourne and Brisbane.
The full report is accessible free here: http://www.childabuseroyalcommission.gov.au/policy-and-research/redress/final-report-redress-and-civil-litigation