Following the profound and often shocking revelations that came to light during the Royal Commission into Institutional Responses to Child Sexual Abuse, the NSW Government has acted swiftly to adopt a range of measures designed to assist future victims of institutional child abuse to gain access to legal redress.
Previously, survivors of organisational child abuse faced numerous legal hurdles when attempting to seek redress for the immeasurable harm they suffered.
On 26 October 2018, the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) (Act) was enacted. The new legislation introduces a statutory duty on both public sector agencies, private organisations and unincorporated organisations to prevent the abuse of children. Relevantly, the Act applies only to child abuse perpetrated after the enactment date.
In brief, the key changes implemented by the Act are as follows:
- a statutory duty of care is imposed on organisations that exercise care, supervision or authority over children to prevent child abuse perpetrated by individuals associated with the organisation;
- the duty of care owed by an organisation to protect a child from abuse is non-delegable such that the organisation will be responsible even where it has delegated care, supervision and authority of
- the child to another organisation;
- the usual onus of proof that applies in negligence cases is reversed so that the organisation must establish that it took reasonable precautions to prevent the abuse; and
- vicarious liability is extended to include child abuse perpetrated by non-employees whose relationship with the organisation is ‘akin to employment’ – closing the ‘loophole’ where organisations would escape liability simply because the perpetrator was not technically an ‘employee’ of the organisation.
It is yet to be seen how effective these measures will be at achieving their purported outcomes, given the Act’s relative infancy. Nevertheless, organisations that routinely work with or around children should ensure their child safety policies and risk management procedures are regularly reviewed, updated and implemented. Organisations will need to review their staff recruitment and management policies and procedures. In particular, position descriptions should be developed for positions and volunteer roles of people who work with children unsupervised that identify the requirements and training needs for the role.
If in doubt as to how the provisions in the Act may affect your organisation, legal advice should be sought as soon as possible.