The Redress and Civil Litigation Report contains 84 recommendations about redress for survivors of institutional child sexual abuse, and a further 15 recommendations to reform civil litigation. You can read the Victorian Government’s 2018 response to the Redress and Civil Litigation Report here.
Redress
On 9 March 2018, the Victorian Government and the New South Wales Government were the first states in Australia to opt in to the National Redress Scheme, responding to a key recommendation from the Royal Commission and the Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Organisations, Betrayal of Trust report.
On 13 June 2018 the Victorian Parliament referred powers to the Commonwealth Parliament to allow Victorian institutions, including the State of Victoria, to participate in the National Redress Scheme.
The Victorian Government has participated in the Scheme since it commenced on 1 July 2018.
The Scheme is operated by the Australian Government and is governed by a framework for determining applicants’ eligibility for redress, and which institution is responsible for payment. Applicants may receive access to counselling, a redress payment, and a direct personal response from the institution responsible for the abuse (for example, an apology).
All applications for redress are determined by independent decision makers. The Victorian Government is responsible for paying redress to a person if a Victorian Government institution is found reasonably likely to be responsible for a person’s abuse.
The Victorian Government provides counselling to all applicants who receive an offer of redress under the Scheme residing in Victoria. A person is offered a choice of counselling service provider, and a range of delivery options and services in rural, regional and remote areas. Specific services accommodate culturally appropriate counselling for Aboriginal and Torres Strait Islander people, and consider the needs of applicants related to disability, gender, sexuality and language.
Civil Litigation
Fifteen recommendations in the Redress and Civil Litigation Report relate to reforms to civil litigation. The Victorian Government has implemented all of these recommendations, through a suite of reforms introduced to remove a range of hurdles faced by child abuse survivors seeking compensation from organisations associated with their abuse.
In 2014, the Victorian Government adopted Common Guiding Principles to provide guidance on how departments should ordinarily respond to civil claims involving allegations of child sexual abuse. The Common Guiding Principles are police guidelines that complement the Model Litigant Guidelines. The Common Guiding Principles inform the response of departments to civil claims involving allegations of child sexual abuse in connection with state institutions. They state that departments should be mindful of the potential for litigation to be a traumatic experience for claimants who have suffered sexual abuse, and that departments should consider facilitating an early settlement and should generally be willing to enter into negotiations to achieve this.
In 2015, Victoria became the first jurisdiction in Australia to completely remove the statute of limitations for civil claims founded on child abuse. Amendments to the Limitation of Actions Act 1958 removed the limitation period for all relevant child abuse claims regardless of the time or context of the alleged abuse. Before this reform, time limitations were one of the major barriers faced by victims of child abuse who wished to pursue legal action.
Limitation periods often discouraged victims from bringing their claims in court, and the expiration of a limitation period was commonly used against victims in negotiations – often to reduce the settlement amount offered. This reform implemented a key recommendation of Betrayal of Trust and the Royal Commission.
In 2017, the Victorian Government introduced an Australian-first duty of care for organisations exercising care, supervision or authority over children. Amendments to the Wrongs Act 1958 created a new duty of care to hold an organisation responsible for child abuse that occurred in their organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse. This reform commenced on 1 July 2017, and implemented another key recommendation from Betrayal of Trust and recommendations of the Royal Commission.
In 2018, the Victorian Government introduced new laws to close an unfair legal loophole preventing child abuse survivors from suing some organisations responsible for their abuse. The Legal Identity of Defendants (Organisational Child Abuse) Act 2018 commenced on 1 July 2018. The reform prevents unincorporated organisations from replying on a legal technicality – known as the ‘Ellis defence’ – to avoid being sued. The Ellis defence resulted from a 2007 New South Wales Court of Appeal decision that found unincorporated organisations using trusts to conduct their activities did not legally exist and could not be sued in their own right. The reform enables an institutional child abuse plaintiff to pursue damages against an unincorporated non-government organisation that controls one or more associated trusts, either by the non-government organisation nominating an entity to be sued or by the court appointing the non-government organisation’s associated trusts to be responsible for any liability. This reform implements recommendations of both Betrayal of Trust and the Royal Commission.
The Victorian Government will also introduce a complementary reform, requiring Victorian government agencies ensure that non-government organisations receiving government funding to provide services to children are incorporated and insured against child abuse. This will mean that such organisations are capable of being identified and held financially responsible where they are responsible for child abuse, and will improve access to justice for survivors.
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