Civil Liability (Institutional Child Abuse Liability) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2021.)

Ms HILDYARD (Reynell) (12:20): I rise to speak on this bill and in doing so I indicate that I will be the lead speaker for the opposition. In doing so, I also offer my love and support to those community members who have suffered the horror of child sexual, physical or psychological abuse, and to the many amongst them who continue to seek justice and to seek peace.

In setting out Labor's support for this bill and our absolute support for those who have suffered, I express my utter dismay and anger about the delay this government has caused in progressing this most important of bills.

This bill rightly addresses unactioned recommendations, specifically Nos 89 and 91 to 94 from the 2015 Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. Whilst it is based on these recommendations, the bill goes beyond child sexual abuse to also include serious physical abuse and psychological abuse in institutional contexts. The bill includes both prospective and retrospective provisions.

In line with recommendations 91 to 93, the first prospective change reverses the onus of proof in certain circumstances. Under current law, an action for negligence requires the complainant to prove every element. This bill rightly recognises that organisations are better placed than those who have suffered child abuse to show whether or not they had proper systems in place to deal with abuse.

The royal commission recommended, and therefore this bill proposes, that the onus of proof be reversed with regard to proving negligence. This reverse onus does not apply to proving whether abuse occurred but applies to whether negligence was present with regard to associated persons. Associated persons are defined in section 50C to include people with institutional responsibilities, such as employees and volunteers, but this definition does not include recipients of services nor visitors.

The second prospective change deals with vicarious liability in line with recommendation 89 of the royal commission report. The bill codifies the common law test for vicarious liability, and similar to associated persons discussed earlier it expands liability to include people akin to employees. There are also two retrospective elements of the bill. The first deals with identifying the proper defendant in line with recommendation 94 of the royal commission report.

This proposed change addresses historic abuse that occurred in an institution the structure of which prevented its being sued, such as an unincorporated association with complex trust structures. This bill appropriately allows action against subsequent office holders or successor institutions and for liability to be met from assets held in an associated account. The bill also holds people and organisations responsible for their actions—actions that have deeply damaged people and their lives.

The second retrospective change does not arise from the royal commission report and deals with setting aside previous settlements. This proposal arises from a 2019 reform that removed the time limit for commencing civil claims. Where a person has entered into a previous settlement, they may apply to the court to have it set aside for reasons including power imbalance, lack of legal representation or earlier conduct that was unfair or oppressive. This measure ensures that the voices of those who have tragically suffered abuse are heard.

Despite this government having had the royal commission report every single day since it was elected, this bill was first introduced to the other place only in late August this year. Labor offered its full support and declined to ask questions in committee in an effort to progress this bill through the parliament with zero delay—zero delay because ensuring that children are safe, cared for and enabled to thrive is of the highest importance and the most pressing priority, and zero delay because dealing with those who perpetrate abuse and those who refuse to deal with those in their organisations who perpetrate abuse and do not keep children safe and cared for is absolutely crucial.

Once second reading speeches were completed, the bill was passed by the other place in two minutes. Shamefully, due to this government's inaction, we find ourselves debating this bill at this point three months later in the last few sitting weeks before an election. With this inaction, this government has demonstrated its priorities. These are the most critical of reforms, and Labor welcomes them, but it is utterly bewildering why this government would let something so incredibly important to so many in our community and particularly to those whose voices need to be urgently amplified, something with universal support, languish on the Notice Paper for months on end.

But we have seen this behaviour before with sentence discounts for child sex offenders. In that case, the Attorney-General sat on an expert report from a retired judge for 19 months. It was only after Labor introduced a bill to address that terrible situation that those opposite introduced a bill. The government then took so very long to pass their own bill that we had an awful, awful plethora of serious offenders lined up in the Magistrates Court to plead guilty before the new law took effect. They literally had to schedule a special court session for the 13 serious criminals who will now shamefully get out of prison earlier because those opposite failed to act—absolutely shameful.

Sadly, South Australians have seen this kind of behaviour before with too many issues where the government promised to act and had a moral obligation to act and completely failed to do so. On so many issues that our community rightly demands our leadership as a parliament on, this government has simply failed to act. This has happened on everything from their own election commitments like petrol pricing and social worker registration to Wicked Campers, toughening penalties for dealing with intervention orders right through to dealing with heinous child sex offenders.

We have seen this in millions of dollars of cuts to the Legal Services Commission in their very first budget. We have seen this in the $780,000 that was cruelly slashed from the women's domestic violence court assistance program in their second budget. We saw this in their third budget when they jacked up the victims of crime levy by 50 per cent without boosting support for victims. We saw this again when they gutted the Victim Support Service and left so many regional towns without in-person counselling, resulting in people who had gone through the most horrendous of circumstances bereft, with nowhere to go.

Labor offers its full and unqualified support for the bill and our only question for this government is why on earth we are dealing with this today and not months or, indeed, years ago. This parliament does not need to hear the answer to that question. This government owes that explanation to those who have suffered abuse and their families.

This government also needs to explain why it moved to shut down parliament in the last sitting week. If this government had got its way, all three child sex abuse bills that are on this Notice Paper would have lapsed. If this government had got its way, those who have suffered horrific child sexual abuse would have had less access to justice, no peace or compensation. If this government had got its way, then serious child sex offenders would be spending less time in prison.

It was those of us on this side of the house who demanded that we stay here and do the job we are paid to do and progress bills that have for far too long languished on this Notice Paper. It was only those on this side of the house who stood up for the rights of victims and said that offenders should face severe punishment for harming children. This government either did not want to get these bills passed or did not have the influence or the will within their own party to get these bills prioritised.

This has all happened under the watchful eye of the Premier, who has said at every opportunity that the Attorney-General, who had responsibility for these bills, had his 100 per cent support. This government has proven what and who it prioritises. This legislation should have been one of the first items on its agenda after being elected. Instead, this government has been dragged to deal with this after it tried to shut down the parliament in the full knowledge that it would be leaving victims of child sexual abuse high and dry.

Again, we support this bill, but we are utterly appalled by the delay and, again, this government needs to explain that delay to those in our community who have suffered child sexual abuse and have been waiting for peace and for access to justice.

Ms LUETHEN (King) (12:32): I rise to support this bill, which is one more example of the member for Bragg's hard work and important work aimed at better supporting and gaining justice for victims of abuse in our South Australian community. It is also an outcome of years of advocacy by victims of child sexual abuse. This change will make sure the voices and experience of victims are heard.

The Royal Commission into Institutional Responses to Child Sexual Abuse released its Redress and Civil Litigation Report in September 2015. For so many years, the Labor Party did no work to give victims of sexual abuse justice. The report makes 99 recommendations aimed at addressing or alleviating the impact of past and future child sexual abuse and related matters in institutional contexts.

My friend Sarah Keane told me today that she knows of at least 20 people whose lives will be changed if this bill is supported. Over the past 15 years, up to 500 claims have been settled against the government, churches and other institutions. Hundreds of sexual abuse victims who have already received payouts from the state government, churches and other organisations could soon be able to launch fresh legal action in the hope of getting more compensation.

I think if the legislation is passed there will be a large number of people who will want to relitigate their matters because previous settlements were completely disproportionate to the harm suffered. The Civil Liability (Institutional Child Abuse Liability) Amendment Bill 2021 addresses the final unactioned recommendations from the report. It is also worth noting that, while the royal commission recommendations are limited to sexual abuse, following consultation the bill was extended to sexual abuse, serious physical abuse and related psychological abuse committed in an institutional context.

Key elements of the bill include the reverse onus of proof. An institution is in a better position to prove the steps it took to prevent abuse than the victim is to prove historical abuse. The institution generally should have better access to records and witnesses. Recommendations 91 to 93 of the report address this reality and recommend a reverse of the onus of proof.

Section 50F reverses the onus of proof, making institutions liable for abuse committed by associated persons, unless the institution can prove it took reasonable steps to prevent the abuse. Section 50G in the bill codifies the common law test for vicarious liability. Essentially, institutions will be vicariously liable for abuse of a child by its employee where the institution placed the employee in that role that supplies the occasion for the abuse and the employee takes advantage of that occasion.

Further, the royal commission identified an obstacle for establishing vicarious liability is that it only applies to employees. Sections 50A(2) and (3) in the bill remove this obstacle by extending vicarious liability to the persons akin to an employee of the institution. These reforms apply prospectively.

Identifying a proper defendant: the report also highlighted the difficulties that survivors have faced in identifying a proper defendant, particularly as unincorporated associations cannot sue or be sued. This is particularly concerning where the unincorporated association holds significant assets in an associated trust. Recommendation 94 of the report recommends ensuring that unincorporated associations with assets held in the form of a trust or trusts can be held liable and that liability can be satisfied from the assets of any associated trust.

Divisions 4 and 5 of part 7A of the bill give civil recourse to victims who have suffered child abuse while under the care, supervision, control or authority of an unincorporated association. It also enables action to be taken against the subsequent officeholders and successor institutions. This change will apply whether the abuse occurred before or after the commencement of the bill, so victims historically precluded due to these legal barriers will be able to sue for historical abuse.

Setting aside of previous settlements: on 1 February 2019, the time limitation for commencing a child abuse claim in South Australia was removed by the Marshall Liberal government with support in this house. As a consequence, this has prompted consideration of those victims who settled their claims prior to that date. Part 7B of the bill enables affected victims to commence proceedings and seek to have the settlement agreement set aside.

In determining whether to set aside an agreement, the court may consider (a) the extent to which the existence of the limitation period or barriers to identifying a proper defendant materially contributed to the applicant's decision to enter into the agreement; (b) the circumstances in which the agreement was negotiated and entered into, including (i) whether negotiations were affected by an imbalance of power, (ii) whether the applicant was legally represented, and (iii) whether the defendant or other parties engaged in unfair or oppressive conduct; and (c) any other matter the court considers relevant.

Most other jurisdictions, including Victoria, Queensland, Western Australia and Tasmania, have already implemented changes to enable previous child abuse settlements to be set aside. New South Wales is in the process of implementing changes. I say once again: shame on the Labor Party for doing nothing for so long.

These reforms will enhance social justice by removing obstacles to civil redress identified by the royal commission. Some of those obstacles have prevented victims of institutional child abuse from seeking justice based on technicalities in the operation of the law or due to the power imbalance between institutions and victims. There is often no dispute that the person is a victim of institutional sexual abuse, but the law has prevented them from being able to sue or establish liability.

In August 2020, targeted consultation was undertaken on the initial draft bill including government agencies, judiciary, legal organisations, children's advocates, community service providers, peak bodies (e.g. for schools, childcare centres, foster care agencies) and religious organisations. General support for the bill was widely expressed.

Affected institutions conveyed some concern about the impact on their ability to provide services to children, while victims' advocates tended to advocate for even stronger protections. A number of amendments were made to the bill as a result of the consultation. The most significant change is to the extension of the bill to include not just sex abuse but also serious physical abuse and related psychological abuse. Support for a broader definition of abuse strongly emerged from the stakeholder feedback.

I strongly support these recommended changes and I thank the member for Bragg for working so hard to listen to victims, to implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Redress and Civil Litigation Report from September 2015. It is critical that this bill is supported, so the victims of abuse can seek justice for these crimes. I commend the bill to the house.

The Hon. J.B. TEAGUE (Heysen—Minister for Planning and Local Government) (12:41): I will be brief. I wish to thank and recognise the contribution of the member for Reynell and the member for King. I thank the Minister for Energy and Mining for giving the second reading speech on behalf of the minister in the course of this debate. I will only add, as this is the first bill for which I am responsible in this capacity, I indicate that I could not be more proud.

I wish to recognise the presence in the gallery this afternoon of Sarah Keane, who is an advocate for child victim survivors. I know that many survivors will be watching these proceedings online and otherwise following progress in this house. It is a day that will be, I hope, marked as a proud day in the course of this parliament's history. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.B. TEAGUE (Heysen—Minister for Planning and Local Government) (12:42): I move:

That this bill be now read a third time.

Bill read a third time and passed.