As a Not for Profit or School – Do We or Don’t We opt in?

The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Act) became law on 1 July 2018.

It establishes a system of redress for survivors of past institutional child sexual abuse and applies now to all States and Territories.

The Scheme is designed to provide a simple and streamlined alternative to taking civil court action.

Where an organisation has taken the step to opt into the Scheme, a person who claims abuse before the date the scheme was established can choose between;

– applying for redress under the Scheme, and

– alternatively lodging a civil claim (for a civil remedy under the tort of negligence) against that organisation.

By opting into the Scheme, an organisation agrees to submit to the process and pay any award that the people running the process determines – up to a cap of $150K for redress of the wrong and up to $5K for counselling.

It also entitles the claimant to an apology.

Institutions can join the scheme up until 30 June 2020 but consideration for each organisation should be underway now.

The website shows the organisations that have already joined the scheme and refers to other organisations that participated in the Royal Commission relating to Institutional Responses to Child Sexual Abuse by outing them if they have not yet joined.

Specific Considerations for Schools and some NFP’s

This paper focuses on organisations that may not be incorporated under state or federal legislation or were not incorporated in the past and have since become incorporated.

When considering claims that can be made for child abuse, there are 3 variations of claims that routinely arise:

1. Liability for a breach of the general duty of care owed by an organisation to students or members to take reasonable care for a child’s safety including taking precautions to keep them safe by taking steps to prevent or minimise the risk of child abuse happening:
2. A breach of the duty when a child’s care is delegated to a third party like a volunteer or a contractor who perpetrates sexual abuse, in which case the general duty in 1. Is non-delegable to absolve the organisation from responsibility; and
3. Vicarious liability that the organisation bears for the acts of an employee in perpetrating sexual abuse.

How the Redress Scheme Works

Each state or Territory must enact legislation to adopt the Commissions’ recommendations to provide survivors with a simplified pathway to obtain redress.

There is a general commitment to:

1. Introduce state legislation to impose a non-delegable duty on certain institutions (including Schools and NFP’s) for institutional child sexual abuse, despite the fact that the perpetrator was acting with criminal culpability;

2. Reverse the onus of proof to place the liability on the institutions so that the onus is to prove that reasonable steps were taken to prevent the abuse; failing which the organisation will be found liable for the abuse by people associated with the institution; and

3. Amend legislation to expand the definition of “persons associated” with the institution to include officers, office holders, employees, agents, volunteers and contractors”.

In WA and elsewhere there have been legislative changes made to extend the limitation period in relation to these claims and to negate previous defences that have been established in courts.

Western Australia

An amendment has now been made to the Civil Liability Act 2002 (WA) in recent legislation which is the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018.

This provides a legal basis for suing institutions for historical child sexual abuse in the name of the current office holders due to the previous legal difficulties in suing an unincorporated institution.  The reason is that, at law, unincorporated associations do not have the necessary legal capacity in order to be named as a party to legal proceedings.

Now they can be sued.

Any institution that is not incorporated or was not at the time of the alleged abuse, can now be sued by a survivor as the proper defendant, when in the past this may have been difficult.

Summary of WA Law Changes

1. A survivor in historic child abuse proceedings can proceed against the current office holder of the unincorporated institution because the new Act places the current office holder in the same position of the office holder who held that office at the time that the act was committed.

i.e.          If the CEO of the Fictional Archdiocese of Perth who was the office holder in 1980 when the alleged offence was committed, then the proper office holder now who can be a defendant to proceedings is the CEO of the Fictional Archdioceses of Perth (despite being the successor).

2. For those unincorporated institutions or the current office holder being sued, in consultation with the trustees who are related parties, there is the power to call upon any property being held in trust, notwithstanding any written laws, duties, or the terms of the trust deed may prevent the available trust money being applied in the settlement of damages.
3. Survivors from abuse related to unincorporated organisations can trace back through current organisations and link the historical institution to its current form, and, where the current institution and office are substantially the same as they were in the past, the current office holder may be sued and can be liable in place of the historical office holder.

“Substantially the same” would be where the property, members, dealings, primary purposes and work etc. are still substantially the same.

Ask yourself as an NFP the following questions:

1.When did we incorporate? (if we are now);

2.Who were the previous office holders before incorporation; and

3. Do we know if there were any allegations going back to that time where there may have been circumstances that could lead to a claim now against us?

Perhaps you have relied upon the fact that any previous complaint may have occurred decades before your time and are surely too old to be commenced?

Well regrettably they are not to old to be commenced now against your organisation.

Abolition of Limitation Periods

The legislation has also abolished the limitation periods, again retrospectively, to allow:

• Setting aside judgments where actions were defeated by limitation dates;
• Setting aside settlements where the action that would have been statute barred was settled;
• Allowing actions that were discontinued before this legislation was enacted to be revived.

The upshot is that survivors who were previously prevented by the Limitation periods for commencing actions are free to do so now.

Legal Costs of Commencing Action

The encouragement of these actions by legal practitioners has been considered in the legislation which limits the recovery of legal fees in these types of actions to the appropriate court cost determination.  Your lawyer should be aware of this and know that charging you anything above the court scale is void.

When considering the position of your organisation, there are numerous matters to have regard to.  Take advice and make a good decision as a poor one may expose you to significant risk and threaten your financial viability.

This website and blog is made available by Havilah Legal only to give you general information and a general understanding of the law. It is not legal advice, and should not be treated as such.

Liability limited by a scheme approved under Professional Standards Legislation.