Multiple changes and proposed changes in child abuse protection
New laws in Victoria for organisational child abuse – Reportable Conduct Scheme – The Royal Commission’s Recommendations
The legal landscape around child abuse and child protection is changing rapidly.
From 1 July 2017, amendments made to the Wrongs Act 1958 (Vic) impose a new duty of care on Victorian institutions that exercise care, supervision or authority over children. On the same day, the first part of the Victorian Reportable Conduct Scheme also commenced, imposing obligations on organisations to respond to and report allegations of “reportable conduct” by employees or volunteers.
On 14 August 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse released its report on Criminal Justice, making 85 recommendations for reforming the justice system across Australia in the area of child abuse.
Liability of organisations for child abuse – what the new laws mean
The amendments to the Victorian Wrongs Act have made organisational liability for child abuse clearer and easier to prove. An institution’s duty is now “to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation for the conduct of its employees and others connected to the institution”.
This duty will apply both to those organisations that care for or supervise children, and to individuals associated with that organisation.
Shifting the Burden of Proof
In addition, the burden of proving the duty has been fulfilled sits with the institution. It must show that it took “reasonable precautions” to prevent abuse by an individual associated with the institution.
What is meant by “reasonable precautions” depends on several factors, including:
- the nature of the institution;
- resources reasonably available to it; and
- the relationship between the institution and the child.
Reportable Conduct Scheme
The Reportable Conduct Scheme (Scheme) seeks to improve organisations’ responses to allegations of child abuse and neglect by their workers and volunteers.
It ensures that the Commission for Children and Young People (CYP Commission), the body that replaced the Office of the Child Safety Commissioner and which is empowered to promote improvement in policies and practices that affect the safety and wellbeing of Victorian children, will be aware of allegations of certain types of employee misconduct involving children in certain organisations that exercise care, supervision and authority over children.
Requirements for heads of organisations
Under the Scheme, heads of relevant organisations are required to respond to allegations of child abuse (reportable conduct allegations) made against their office holders, employees (including a religious leader), contractors and volunteers.
They must notify the CYP Commission within three days of receiving a reportable conduct allegation and provide a progress update on their responses to such an allegation to the CYP Commission within thirty days.
The allegations do not have to be proven in order to be reportable.
Once investigated, heads of organisations must provide the findings of the investigation to the CYP Commission.
They should also:
- have in place systems to prevent child abuse, and in case child abuse occurs, to ensure allegations can be brought to the attention of appropriate persons for investigation and response; and
- report to Victoria Police as soon as they become aware that a reportable allegation may involve criminal conduct.
What types of organisations are covered by the Scheme?
Organisations are required to commence complying with the scheme in one of three phases over an 18-month period starting on 1 July 2017.
The first phase focuses on organisations that operate schools and provide government services.
The second phase encompasses religious bodies or organisations that operate residential facilities, overnight camps for children, care facilities, or a public health service.
The third phase includes approved education and care services, children services and prescribed arts centres (including museums), zoos and parks.
What types of conduct are reportable?
- sexual offences;
- sexual misconduct;
- physical violence;
- behaviour that is likely to cause significant emotional or psychological harm; and
- significant neglect of a child.
Allegations can be made about a conduct even though it occurred outside of the employee’s work.
Failure to comply with the Scheme
It is an offence to fail to notify and update the Commission about reportable allegations.
Preparing for the implementation of the Scheme
Insurers need to be aware of the new laws and the potential for the vicarious assumption of liability by organisations for misconduct of employees or other associated members.
Royal Commission Recommendations
The Royal Commission into Institutional Responses to Child Sexual Abuse has recently made 85 recommendations to change the justice system to protect children from abuse. At least three of those changes, if implemented, may also have an impact on the civil liability of organisations.
One recommendation is to introduce legislation that would make failure to protect a child from abuse a crime. This would apply to people who have the power or the responsibility to stop a child from being abused, but fail to do so.
If an organisation knows there is a substantial risk that someone associated with their organisation will sexually abuse a child, but do not do anything about it, they would be criminally liable. It seems likely that a criminal conviction for failing to protect a child from abuse would make a claim in negligence against an individual, or institution, much easier to prove.
Grooming offences to be widened
“Grooming” refers to a preparatory stage of child sexual abuse, where an adult gains the trust of a child in order to take sexual advantage of the child.
In Victoria, the offence of grooming is already very widely-defined and covers any words or conduct. It also covers both the grooming of the child and the grooming of a person who has care or supervision of, or authority over, the child.
The Royal Commission has recommended that each state and territory government should introduce legislation to amend its criminal legislation to adopt a similarly-broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence, and the grooming of persons other than the child.
Again, the criminalisation of grooming conduct is likely to make claims for failure to stop grooming much easier to prove.
Tendency, coincidence evidence and joint trials
The Royal Commission also recommended that the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed. Specifically, the Royal Commission recommended greater admissibility of tendency and coincidence evidence and joint trials in certain circumstances.
In addition, the Royal Commission suggests that evidence of the defendant’s prior convictions or acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it is otherwise admissible.
Making convictions easier in the criminal context may well lead to similar changes in the civil context. The civil standard of proof is already lower than the criminal law, but these changes, if made, may strengthen the argument to mirror the changes in civil law.
Date: 5 September 2017