Law Reform in NSW will adopt many of the recommendations of the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse.
These changes will bring a sigh of relief for survivors of child abuse that occurred under the care of organisations including those that administer foster care and community-based, volunteer, or non-profit institutions. The new laws will assist affected persons in two ways:
1. Changing the way these matters are dealt with in Court. New legislation aims to close some of the existing loop holes that preclude survivors from receiving compensation.
2. The formulation of a National Redress Scheme. This scheme is intended to provide an alternative to Court proceedings.
Making court proceedings fairer for survivors
The proposed amendments will essentially determine an institution liable for proven abuse by any persons associated with the institution, unless the institution proves it took all reasonable steps to prevent the abuse. This is a shift in the burden of proof.
In other civil claims, it is usually the responsibility of the person making the claim to ensure all aspects of their claim are fully evidenced. Shifting the burden of proof is a big deal for lawyers, but from a community perspective, it is realistic to expect an institution with children in its care should take all reasonable steps to prevent child abuse. If it does not, it should be held responsible for the damage.
The proposed changes also provide that institutions are labile for individual actions of abusers regardless of the fact that they may be ‘non-employees’, by providing an extended legal meaning of an individual associated with a relevant organisation.
Responsibility of institutions that allow for child abuse is important. Whilst under the law the liability of an individual abuser is very clear, liability of the broader institution has proven to be less clear in law, as demonstrated by the Ellis Defence.
The often complex structure of these institutions, in particular the Catholic Church, has precluded survivors from receiving compensation. The victory of the institution over the abused unfortunately arose where the aspect of the organisation that holds assets is detached from its operation. In these cases, and indeed the Court of Appeal case of John Ellis, the body that can be sued to recover compensation, cannot also be held responsible for the individual abusers conduct.
The amendments will now overcome this barrier by allowing courts to have the power to appoint trusts associated with institutions to be sued in order to solve the problem of no defendant with assets.
An alternative to court
The National Redress Scheme , established by its 2018 Act commences on 1 July 2018 and will continue for 10 years until 1 July 2028. The scheme entitles survivors to three components of redress:
1. It offers victims financial redress of up to $150,000 (this is an amount exempt from income tax);
2. Access to counselling and health care services; and
3. Direct Personal Response (DPR).
The concept of DPR is new to lawyers. A DPR from an institution may be an apology, an acknowledgement of the impact of the abuse, an assurance steps have been taken to prevent abuse in the future, or another meaningful recognition. DPR is managed by a facilitator.
Although a claim under the redress scheme may be easier to prove and to manage for survivors, the compensation available is limited. An offer of redress under the scheme will be open for at least six months. Acceptance of that offer will preclude victims from the potential to commence proceedings against the institution. Survivors will need legal advice about whether it is best to proceed to court or engage in the scheme.
Child abuse survivors having to stand up against big institutions in court is harrowing. However, the changes present a step forward in safeguarding justice for victims.
This article was written by Lawyer Natalee Davis.