James, Michelle --- "Legislative responses to Royal Commission recommendations: Where are we at?" [2019] PrecedentAULA 69; (2019) 155 Precedent 14

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LEGISLATIVE RESPONSES TO ROYAL COMMISSION RECOMMENDATIONS

WHERE ARE WE AT?

By Michelle James

On 12 November 2012, Prime Minister Julia Gillard announced that she would recommend the establishment of a Royal Commission to inquire into institutional responses to child sexual abuse. A consultation paper seeking input into the terms of reference received numerous submissions, many of which highlighted the inadequacies of the legal remedies available to survivors who were seeking redress through the legal system.

In the letters patent,^[1] the Commission was specifically directed to consider:

‘

d. what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms.’

Over its five years, the Royal Commission delivered 409 recommendations across four reports. This article considers recommendations from the:

• Redress and Civil Litigation Report; and

• Criminal Justice Report.^[2]

REDRESS AND CIVIL LITIGATION REPORT

In its Redress and Civil Litigation Report dated 15 September 2015, the Royal Commission made 99 recommendations. Fifteen of these recommendations were directed towards legislative and policy reforms intended to make civil litigation a more effective means of providing justice for survivors.^[3]

The response from the states and territories has, predictably, been inconsistent and varied.^[4] As we approach the fifth anniversary of the Report, no individual state or territory can claim to have fully responded to all of the recommendations. Moreover, even where recommendations have had a legislative response, differences between the ways in which the recommendations have been adopted in jurisdictions can mean that a survivor in one jurisdiction has rights that do not exist in another.

Recommendations

As stated above, the final 15 of the 99 recommendations contained within the Redress and Civil Litigation Report relate to law reform (the other 84 are directed to redress). The recommendations cover the following areas:

• limitation periods (recommendations 85–88);

• duty of institutions (recommendations 89–93);

• identifying a proper defendant (recommendations 94–95); and

model litigant approaches (recommendations 96–99)

Recommendations relating to limitation periods

85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.

86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.

87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.

88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.

Table 1: Legislative response to recommendations relating to limitation periods

ACT	NT	NSW	QLD	SA	TAS	VIC	WA
Limitation Act 1985 amended by Justice and Community Safety Legislation Amendment Act 2016 (No. 2) (commenced 24 May 2017)	Limitation Act 1981 amended by Limitation Amendment (Child Abuse) Act 2017 (commenced 15 June 2017)	Limitation Act 1969 amended by Limitation Amendment (Child Abuse) Act 2016 (commenced 17 March 2016)	Limitations of Actions Act 1974 amended by Limitations of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Pt 2 commenced 1 March 2017) Civil Liability Act 2003 amended by forthcoming Civil Liability and Other Legislation Act 2018 (passed 23 October 2019, awaiting royal assent, to commence on proclamation)	Limitation of Actions Act 1936 amended by Limitation of Actions (Child Abuse) Amendment Act 2018 (commenced 1 February 2019)	Limitation Act 1974 amended by Limitation Amendment Act 2017 (commenced 1 July 2018)	Limitations of Actions Act 1958 amended by Limitation of Actions Amendment (Child Abuse) Act 2015 (ss3 and 4 commenced 1 July 2015) and by the Children Legislation Amendment Act 2019 (commenced 17 September 2019)	Limitation Act 2005 amended by Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (commenced 1 July 2018)
Removed limitation periods for personal injury claims arising out of sexual abuse when the person was a child in an institutional context: s21C. ‘Sexual abuse’ is defined to include an offence of a sexual nature and misconduct of a sexual nature: s21C(4).	Removed limitation periods, including retrospectively, for child abuse actions: s5A. ‘Child abuse’ defined as any of the following perpetrated on a person under 18 years: sexual abuse, serious physical abuse or psychological abuse arising from that sexual abuse or serious physical abuse: s5A(6). Empowers the court to set aside certain judgments on previous actions arising from child sexual abuse if it is ‘just and reasonable’ to do so: s54.	Removed limitation periods, including retrospectively, for death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person: s6A. ‘Child abuse’ is defined as sexual abuse, serious physical abuse and ‘connected abuse’ (perpetrated in connection with the two former categories of abuse): s6A(2).	First amending Act: Removed limitation periods, including retrospectively, for damages actions relating to personal injury resulting from the sexual abuse of the person as a child: ss11A, 48(1), (2). Empowers the Supreme Court or original court, where it is ‘just and reasonable’ to do so, to set aside a judgment on the ground that a limitation period applying to the right of action had expired: s48(3)–(5). Empowers a court to set aside an agreement effecting a previous settlement of a right of action if it is ‘just and reasonable’ to do so: s48(5A). The application of the latter subsection was considered in TRG v The Board of Trustees of the Brisbane Grammar School.[5] Second amending Act will: Further amend s11A to include serious physical abuse; and/or psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.	Removed limitation periods, including retrospectively for actions for personal injury resulting from the abuse of a child: s3A and the transitional provisions set out in Sch 1. ‘Abuse’ is defined as sexual abuse, serious physical abuse and psychological abuse related to sexual abuse or serious physical abuse: s3A(5). An action on a previously barred cause of action may be commenced where a judgment was previously given or the action dismissed on the ground that a limitation period applying to the cause of action had expired. In granting permission for the action to be commenced, a court may make any order it considers necessary for the action to proceed or that is otherwise appropriate in the circumstances: Sch 1 of the amending Act.	Removed limitation periods, including retrospectively, for actions for damages arising out of personal injury related to sexual abuse or serious physical abuse when the person was a minor: s5B. The Justice Legislation (Organisational Liability for Child Abuse) Amendment Bill 2019, if passed, will further amend the Limitation Act by allowing courts to set aside previous settlements if ‘it is in the interests of justice to do so’.	Removed limitation periods, including retrospectively, for actions for personal injury resulting from physical or sexual child abuse (may be by ‘act or omission’) or any psychological injury arising from that abuse: Pt IIA, Div 5. Empowers the Supreme Court or original court, where it is ‘just and reasonable’ to do so, to set aside a judgment on the ground that a limitation period applying to the right of action had expired or there had been a refusal to extend the limitation period: s27QA(1), but only when the limitation period expired before 1 July 2015: s27OA. Empowers a court to set aside an agreement effecting a previous settlement of a cause of action if it is ‘just and reasonable’ to do so: s27QA(2), but only when the cause of action was settled by way of agreement before 1 July 2015: s27OA.	Removed limitation periods including retrospectively, for claims arising out of child sexual abuse: s6A. Empowers a court, where it was ‘just and reasonable’ to do so, to set aside a judgment given or action dismissed on the ground that the action was statute-barred: s91. Empowers a court to set aside a previously settled cause of action: s92. Section 92 was considered by the District Court in JAS v The Trustees of the Christian Brothers.[6]

Recommendations relating to duty of institutions

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.^[7]

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:

a) residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care

b) 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

c) disability services for children

d) health services for children

e) 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

f) 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.

Table 2: Legislative response to recommendations relating to duty of institutions

ACT	NT	NSW	QLD	SA	TAS	VIC	WA
No legislative response as yet	No legislative response as yet	Civil Liability Act 2002 amended by Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (commenced 26 October 2018 except Pt 1B, Div 4, which commenced 1 January 2019)	Civil Liability Act 2003 amended by the forthcoming Civil Liability and Other Legislation Act 2018 (passed 23 October 2019, awaiting royal assent, to commence on proclamation)	No legislative response as yet	No legislative response as yet, bill pending	Wrongs Act 1958 amended by Wrongs Amendment (Organisational Child Abuse) Act 2017 (Pt XIII commenced 1 July 2017)	No legislative response as yet
While the ACT government has accepted the recommendations in principle,[8] it has not yet introduced legislation to give them effect.	There has been no formal response to these recommendations from the NT government. A discussion paper in September 2018[9] sought community responses on proposed options for these reforms. The consultation period closed on 2 November 2018.	Codified existing, and introduced new, liabilities where a child is abused in the care of an institution: Pt 1B. Introduces a statutory non-delegable duty of care for all institutions to prevent child abuse (and reverses the onus of proof in the duty of care): Pt 1B, Div 2. Extends vicarious liability to include persons who are ‘akin’ to an employee in line with the common law as outlined by the High Court in Prince Alfred College: Pt 1B, Div 3.[10]	The amending Act will introduce a statutory duty on institutions to take all reasonable steps to prevent sexual and physical abuse of children (in ss33D and 33E) but stops short of a non-delegable duty of care. The second reading speech to the bill specifically notes that ‘the doctrine of vicarious liability [should] be left to the common law’.[11]	In December 2018, the South Australian government announced that it needed to further consider the imposition of a statutory non-delegable duty of care. The reverse onus of proof in relation to duty of care has been accepted in principle, but the government has so far failed to make the necessary legislative amendment.	The Justice Legislation (Organisational Liability for Child Abuse) Amendment Bill 2019 which, if passed, will amend the Civil Liability Act 2002, was tabled on 11 September 2019.	Introduced a non-delegable duty of care on relevant organisations to take ‘reasonable precautions’ to prevent the physical or sexual abuse of children by individuals associated with those organisations, and reverses the onus of proof in relation to this duty: Pt XIII.	A discussion paper published in December 2018 sought community consultation on these recommendations. Consultation closed on 11 March 2019. However, there has not yet been a Bill or any other response from the WA government.

Recommendations relating to identifying a proper defendant

94. State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:

a) the property trust is a proper defendant to the litigation

b) any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.

95. The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims.

Table 3: Legislative response to recommendations relating to identifying proper defendant

ACT	NT	NSW	QLD	SA	TAS	VIC	WA
Civil Law (Wrongs) Act 2002 amended by Civil Law (Wrongs) (Child Abuse Claims Against Unincorporated Bodies) Amendment Act 2018 (commenced 28 September 2018)	No legislative response as yet	Civil Liability Act 2002 amended by Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (commenced 26 October 2018 except Pt 1B, Div 4, which commenced 1 January 2019)	Civil Liability Act 2003 amended by the forthcoming Civil Liability and Other Legislation Act 2018 (passed 23 October 2019, awaiting royal assent, to commence on proclamation)	No legislative response as yet	No legislative response as yet, bill pending	Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (commenced 1 July 2018)	No legislative response as yet
Introduced a mechanism to enable an unincorporated body to nominate an entity to act as the defendant in a proceeding for a child abuse claim, empower a court to make an order to appoint a related trust as defendant to a child abuse claim, and allow trustees to apply trust property to meet liability for child abuse.	A discussion paper from September 2018[12] sought community responses on proposed options for these reforms; consultation closed on 2 November 2018. However, no action has been taken to implement the recommendations following that consultation process.	Introduced a mechanism that enables court proceedings to be brought against an unincorporated association, which can now appoint a related trust as a proper defendant: s6N. The test for this appointment is set out in s6N(3).	New ss33F–33M deal with proceedings against unincorporated institutions, and satisfaction of liability. The institution can nominate a nominee to be the defendant, or the claimant can apply to the court for an order if no nomination is made within 120 days.	There has been no action on the part of the South Australian government in relation to these recommendations, although it has stated its intention to implement them in principle.	Responses to these recommendations are contained in the Justice Legislation (Organisational Liability for Child Abuse) Amendment Bill 2019 which, if passed, will amend the Civil Liability Act 2002. The Bill was tabled 11 September 2019.	The Act applies where a plaintiff wishes to commence a claim against a non-government organisation that is an unincorporated association or body (referred to as an NGO) arising out of child sexual abuse, and but for its unincorporated status the NGO could be sued, and the NGO further controls an associated trust or trusts. In these circumstances, the NGO can nominate an entity capable of being sued to act as a proper defendant, or the plaintiff can apply to the court for an order to proceed with a claim against the trustees of the associated trust.	A discussion paper published in December 2018 sought community consultation on these recommendations. Consultation closed on 11 March 2019. However, no action has been taken to implement the recommendations following that consultation process.

Recommendations relating to model litigant approaches

96. Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse.

97. The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims.

98. The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified.

99. Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives.

Table 4: Policy response to recommendations relating to model litigants

ACT	NT	NSW	QLD	SA	TAS	VIC	WA
There are no model litigant approaches in the ACT.	A revised Model Litigant Policy was published on 19 September 2017. However, this does not specifically refer to child sexual abuse.	By way of a Premier’s memorandum, the NSW government introduced the NSW Government Guiding Principles for Government Agencies, Responding to Civil Claims For Child Sexual Abuse, responding to these recommendations, on 29 June 2016.[13]	The Whole-of-Government Guidelines for responding to civil litigation involving child sexual abuse, responding to these recommendations, were published on 27 June 2018.	South Australia’s Government Model Litigant Guidelines existed prior to the release of the Royal Commission’s recommendations and it is the view of the South Australian government that these guidelines meet the relevant recommendations. No further action is intended.	There are currently no model litigant approaches in Tasmania.	The Department of Health and Human Services and Department of Education and Training issued Common Guiding Principles for responding to civil claims involving allegations of child sexual abuse to complement the existing Model Litigant Guidelines in 2014.	In May 2018, the Western Australia Government Whole of Government Guiding Principles for Responding to Civil Litigation Involving Child Sexual Abuse, responding to these recommendations, were published.

CRIMINAL JUSTICE REPORT

This report from December 2017 made 85 recommendations focusing on reform of the criminal justice system, to ensure that:

• ‘the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused;

• criminal justice responses are available for victims and survivors; and

• victims and survivors are supported in seeking criminal justice responses.’

Recommendation to create offence of failure to report child sexual abuse in institutional context

Considered here is the recommendation that the states and territories introduce legislation to create a criminal offence of failure to report child sexual abuse in an institutional context. This offence should apply to any adult person who is an owner, manager, staff member or volunteer of an institution (including personnel of religious institutions),^[14] including those arising out of religious confessions.^[15] The remaining recommendations relate to police investigation, prosecution, offences, conduct of trials, evidence, judicial directions, sentencing and appeals.

Table 5: Legislative response to recommendation to create new ‘failure to report’ offence

ACT	NT	NSW	QLD	SA	TAS	VIC	WA
Crimes Act 1900 and Children and Young People Act 2008 amended by Criminal Justice Legislation Amendment Act 2019 (commenced 1 September 2019)	Care and Protection of Children Act 2007	Crimes Act 1900 amended by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (commenced 31 August 2018)	No legislative response as yet, bill pending	No legislative response as yet	No legislative response as yet, bill pending	Crimes Act 1958 amended by Crimes Amendment (Protection of Children) Bill 2014 (commenced 27 October 2014) Children, Youth and Families Act 2005 and Evidence Act 2008 amended by Children Legislation Amendment Act 2019 (relevant provisions not yet proclaimed to commence)	No legislative response as yet
Created a failure to report offence applicable to all adults: Crimes Act 1900, s66AA. Extended mandatory reporting of sexual offences against children to ministers of religion: Children and Young People Act 2008, s356(1A).	All persons, including clergy, are already subject to mandatory reporting laws in the Northern Territory if they reasonably believe a child under 14 years of age to be the victim of a sexual offence: s26.	Created a ‘concealing child abuse offence’ punishable by up to five years imprisonment: s316A. While the offence applies to all adults, including members of the clergy and ministers of religion, under the Uniform Evidence Law operating in NSW a statutory evidential privilege currently applies to religious confessions: Evidence Act 1995, s127.[16]	On 22 August 2019, the Queensland Attorney-General released a Consultation Draft Bill, Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill 2019, creating a criminal offence of ‘failure to report’, carrying a maximum sentence of three years imprisonment. While in Queensland there is no statutory evidential privilege applying to religious confessions, the Consultation Draft Bill contains amendments clarifying that the failure to report an offence applies to any information disclosed in, or in connection with, a religious confession.	As at December 2018, the South Australian government continued to consider recommendations relating to failure to report. Mandatory reporting obligations contained in the Children and Young People (Safety) Act 2017 do not include any exemption for ministers of religion for reporting information communicated in the confessional.	Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018 was introduced on 28 November 2018. If passed, it will incorporate a failure to report offence into the Criminal Code 1924: proposed s105A. It will apply to all adults and will not exempt information that was obtained during religious confession. The first reading of the bill in the Legislative Council occurred on 2 August 2019.	In response to its 2013 Betrayal of Trust report,[17] the Victorian government legislated a ‘failure to disclose’ offence on 27 October 2014 which applies to all adults, but contained an exemption for information obtained in religious confessions: s327. Amends inter alia the Children, Youth and Families Act 2005 and the Evidence Act 2008 to clarify that disclosures made during religious confessions will not be exempt from mandatory reporting requirements or the failure to disclose offence.	On 23 May 2019, the state government announced that it will amend the Children and Community Services Act 2004 to require ministers of religion to report child sexual abuse, including where the knowledge was gained from the confessional. On 30 August 2019, the WA government released a Discussion Paper[18] seeking community consultation on proposals to enact legislation giving effect to Royal Commission recommendations. The Paper makes three proposals on how to deal with ‘failure to report’, one being the introduction of a new ‘concealment of child abuse’ offence. It is noted that the government has accepted all of the Royal Commission recommendations in principle. Consultation closes on 18 October 2019.

CONCLUSION

The responses to the Royal Commission recommendations have been varied, and a number of states and territories are significantly lagging behind expectations in terms of enacting recommendations in a timely manner. The Australian Lawyers Alliance will continue to advocate for legislative responses in line with all of the Royal Commission’s recommendations.

Please note that this article was finalised on 29 October 2019.

Michelle James is a personal injuries compensation Principal in Maurice Blackburn’s Brisbane office and the head of its national abuse law litigation practice. PHONE [phone] EMAIL [e-mail].

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^[1] 11 January 2013.

^[2] See also the Final Report dated 15 December 2017, and the Working with Children Checks Report dated August 2015.

^[3] Recommendations 85–99.

^[4] See, for example, the removal of limitation periods which across different jurisdictions are in respect of sexual and/or serious physical, or physical abuse.

^[5] [2019] QSC 157. TRG’s application to have an earlier settlement of a claim against Brisbane Grammar School arising out of abuse by a prolific paedophile set aside failed. In a lengthy judgment, Davies J detailed the background to the claim, the circumstances of the original settlement in 2002 and the legislative history of the amendment. In exercising the discretion under s48(5A), Davies J considered that the legislative purpose of the provision was to strike a balance between two competing interests: the interest of the applicant in commencing a new claim where the result may be more favourable than the settlement and respondent’s interest to avoid that prospect. In exercising the discretion in favour of the respondent, Davis J referred to a number of factors, including that the applicant was legally represented at the date of the original settlement, the reasonableness of the mediation process, the reasonableness of the 2002 settlement figure and delay.

^[6] [2018] WADC 169. This case that largely turns on its own facts, and in which the applicant survivor was successful.

^[7] Subsections to Recommendation 89 have been edited for brevity.

^[8] ACT Government response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

^[9] Department of Attorney-General and Justice (NT), Options paper, Options for the implementation in the Northern Territory of the civil litigation reforms recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse (September 2018) (Options paper).

^[10] Prince Alfred College Inc v ADC (2016) 258 CLR 134; 335 ALR 1 [2016] HCA 37; BC201608462.

^[11] Queensland, Parliamentary Debates, 23 October 2019, 3545 (YM D’ath).

^[12] Options paper, above note 9.

^[13] M2016-03.

^[14] Criminal Justice Report, Recommendation 33.

^[15] Ibid, Recommendation 35.

^[16] Evidence Act 1995 (Cth), s127.

^[17] Victoria, Family and Community Development Committee, Report, Betrayal of Trust: Inquiry into the handling of child abuse by religious and other non-government organisations (November 2013).

^[18] Western Australia, Department of Justice, Discussion paper, Royal Commission into Institutional Responses to Child Sexual Abuse: Strengthening the criminal law in response to child sexual abuse (22 August 2019).