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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-21 Daily Xml
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Civil Liability (Institutional Child Abuse Liability) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 August 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:14): This bill addresses unactioned recommendations, in particular numbers 89, 91, 92, 93 and 94, from the 2015 Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse.

While based on these recommendations, the bill goes beyond child sexual abuse to include serious physical abuse and psychological abuse in institutional contexts. The key prospective elements of this bill are a reverse onus of proof and vicarious liability. Under current law, an action for negligence requires the complainant to prove every element.

The royal commission recommended, and the bill proposes, that the onus of proof be reversed with regard to proving negligence. This has been proposed, noting that organisations are better placed to show whether or not they had proper systems in place. This reverse onus of proof does not apply in proving whether the actual abuse occurred, but applies in whether negligence was present with regard to the abuse that occurred regarding that person and with regard to associated persons.

Associated persons are defined in new section 50C to include people with institutional responsibilities, like employees and volunteers, but not recipients of services or visitors. With regard to vicarious liability, the bill codifies the common law test of vicarious liability and, similar to associated persons above, it expects liability to include people akin to employees.

The key retrospective elements of the bill relate to identifying the proper defendant in setting aside previous settlements. The later of these two is not linked to a royal commission recommendation. Where historic abuse has occurred under an institution whose structure prevents being sued, like an unincorporated association with complex trust structures, the bill allows action against subsequent office holders or successor institutions. It also allows for any liability to be met from assets held in an associated account.

The proposal regarding setting aside previous settlements 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 and unfair or oppressive conduct.

As noted in relation to other bills, we are disappointed that the government has not acted with the urgency that this matter would dictate. This belated bill comes after cuts to other victim support. In the 2018-19 budget, its first after being elected, the government applied a cut to the Legal Services Commission of $1.2 million a year.

Since being elected, this government has cut $780,000 from the Women's Domestic Violence Court Assistance Service and $2.3 million per year from victim support services. So while Labor supports the bill, we do note that the government needs to and should do more for those who need protection: victims of crimes in this state.

The Hon. T.A. FRANKS (16:18): I indicate that my remarks in support of the previous bill that I noted in that speech are echoed in this, and we certainly look forward to the passage of this legislation as well.

The Hon. C. BONAROS (16:18): I rise on behalf of SA-Best to speak in support of the Civil Liability (Institutional Child Abuse Liability) Amendment Bill. I am pleased that the Attorney and the government have again sought to implement changes that were included in a private member's bill that I introduced into this place.

The Royal Commission into Institutional Responses to Child Sexual Abuse released its Redress and Civil Litigation Report in December 2017. During the five-year inquiry, more than 8,000 survivors or people directly impacted by institutional child sexual abuse shared their stories in private sessions with commissioners, following the receipt of almost 26,000 letters and emails and 42,000 calls. Tragically, some of those stories came from family members and loved ones of victims who had ended their own lives. I would like to place on the record the data that emerged from those private sessions, which paints a harrowing picture:

the majority of survivors were male;

93.8 per cent said they were abused by a male;

83.8 per cent said they were abused by an adult;

36.3 per cent were abused by multiple perpetrators;

the average abuse lasted 2.2 years;

over half were first sexually abused between the ages of 10 and 14. That is the cohort we are dealing with when we talk about young vulnerable victims; and

10.4 per cent made their submissions from prison.

In labelling it a national tragedy, the commission found:

The sexual abuse of children has occurred in almost every type of institution where children reside or attend for educational, recreational, sporting, religious or cultural activities. Some institutions have had multiple abusers who sexually abused multiple children. It is not a case—

as I have said before, over and over—

of a 'few rotten apples'. Society's major institutions have seriously failed. In many cases those failings have been exacerbated by a manifestly inadequate response to the abused person. The problems have been so widespread, and the nature of the abuse so heinous, that it is difficult to comprehend.

The report made 99 recommendations relating to sexual abuse. I am very pleased to see that this bill takes the recommendations of the royal commission one step further by broadening the type of abuse suffered to include physical and psychological abuse. It addresses four areas of reform which will go a long way in removing significant hurdles which remain for victims.

The first reverses the onus of proof in negligence cases. Shifting the burden to the defendant to prove they took reasonable care to prevent harm recognises the significant power imbalance between institutions and victims. This is the type of approach rightly applied in dust diseases cases, which is a very different topic but one that applies fairly and equitably nonetheless. In keeping with the royal commission's recommendation, the amendment is prospective.

The second reform seeks to complement the common law doctrine of vicarious liability, imposing a non-delegable duty on particular institutions for the deliberate criminal act of a person associated with that institution. The High Court recently settled the common law test in Prince Alfred College Inc v ADC [2016] HCA 37. That case involved the sexual abuse of a 12-year-old boarder at PAC, just down the road on Dequetteville Terrace at Kent Town, by a housemaster of the college in the 1960s. The High Court found consideration should be given to:

…any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the 'occasion' for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, if the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

This amendment is consistent with that test. It would extend to a priest not technically employed by a church but under its control, for example.

The third reform will enable victims to initiate proceedings against defendants they have previously been prevented from pursuing due to a legal technicality. Historically, unincorporated associations could not be sued despite holding significant assets in an associated trust such as a foster care home. It opens up claims against an office holder where the person in the role may have been charged, such as the archbishop of a church. This amendment is retrospective and will open the door for many historical abuse victims to seek justice. Hear, hear to that!

Finally—and I say finally because I have been waiting for this, and SA-Best has been waiting for this for some time now—the bill provides for the setting aside of previous child abuse settlements, should the court consider it just and reasonable to do so. Members may recall that I introduced a private member's bill which sought to lift the lid on unjust settlements more than two years ago. There did not appear to be any appetite at the time for those reforms, but I am glad to see that common sense has finally prevailed and that this issue has made its way onto the government agenda.

It seeks to level the playing field and give survivors their power back. I think that is an extraordinarily positive step that we should all be exceptionally proud of in this bill. It is one that I am extraordinarily grateful that the government has finally seen sense to agree to. A victim may have entered into an agreement on unfair terms at a time when there was no proper defendant or a limitation of actions applied. As the royal commission report noted:

…the difficulties many survivors have faced in dealing directly with representatives of the institution in which they were abused, being presented with deeds of release under time pressure and in some cases without the opportunity to obtain independent advice, and with little or no knowledge of what others in comparable positions had been offered or paid.

It has not been uncommon for settlements to sit under the $20,000 mark for offending and abuse which has destroyed the lives of vulnerable people and, of course, their families. The court will need to consider the extent any barriers may have contributed to the applicant's decision to enter into such an agreement, as well as any other relevant matters, because, as we know, one size simply does not fit all. This reform that the government has proposed seeks to deal with that issue.

Consideration will be given to both parties in determining what is just and reasonable in the circumstances. My private member's bill, which I have already referred to, specifically dealt with the issue of costs for previously settled actions. I understand that the bill before us provides the discretion to the court.

We have been provided with an extensive list of stakeholders who were consulted on the bill. I am advised that they are satisfied it has been a very thorough process. Again, I commend the government for finally coming around on that particular issue and agreeing to measures that will ensure that agreements which may have been entered into for myriad reasons but may have been very unfair in the circumstances can be addressed via this bill. We look forward to the next stage of its passage.

The Hon. R.I. LUCAS (Treasurer) (16:29): I thank honourable members for their contribution to the second reading of the bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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