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State and territory progress on implementing recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (February 2019)

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State and territory progress on implementing recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse

Throughout 2013-2017 the numerous reports of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) made a number of recommendations on how institutions could better protect against, report on and respond to child sexual abuse in institutional settings. It also made recommendations on what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse.

The recommendations were made to all levels of government and to institutions more broadly (such as not-for-profit organisations). They will have both direct and indirect impacts on not-for-profit community organisations working with or involving children and young people.

All state and territory governments have committed to provide separate annual reports on their progress in implementing the recommendations of the Royal Commission from December 2018 until December 2022. 

The recommendations include the following  

In this report, the Royal Commission considered ways in which institutions can be safer for children. It recommended that institutions implement the Child Safe Standards identified by the Royal Commission, and that the Commonwealth, State and territory governments should require all institutions in their jurisdictions that engage in child-related work to meet the Child Safe Standards.

If adopted as envisioned by the Royal Commission, not-for-profit organisations could be required to ensure they follow the Child Safe Standards.

This report of the Royal Commission focused on what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions

report makes a series of recommendations about the ‘Duty of institutions’ – that is, the legal duty and legal obligations of institutions in relation to child sexual abuse. Amongst other things, it recommends the imposition of liability (that is legal responsibility) on some types of institutions for the deliberate criminal act of a member or employee of the institution as well as for the negligence of that member or employee.

In its reasoning, the Royal Commission stated it is easier for a survivor of abuse to have a legal action against a perpetrator but it was not as clear for the survivor to have a legal cause of action against the institution the perpetrator is associated with. Further, “If the law makes a solicitor liable for the criminal act of his clerk and the dry cleaner liable for the criminal act of his employee, could it be argued that it is not appropriate for institutions to be liable for the criminal abuse of a child when in their care?”

Relevantly for not-for-profit community organisations, the Royal Commission recommended:

  • State and territory governments introduce legislation to make institutions liable for institutional child sexual abuse by “persons associated with the institution” unless the institution proves it took reasonable steps to prevent the abuse. This applies to all institutions, including institutions that administer foster care and kinship care, and community-based not-for-profit or volunteer institutions that offer opportunities for children to engage in cultural, social and sporting activities.
     
  • That “persons associated with the institution” include “the institution’s officers, office holders, employees, agents, volunteers and contractors”.

If adopted as envisioned by the Royal Commission, not-for-profit organisations could be held legally responsible and ordered to pay compensation if an officer, office holder, employee, agent, volunteer or contractor associated with their organisation is a perpetrator of child sexual abuse. This is referred to as a “reverse onus of proof” meaning that the not-for-profit organisation would be automatically liable unless they can prove that they took reasonable steps to prevent the abuse.

Australian Capital Territory

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

The ACT government has a partially regulated child safe standards system in place. In its formal response to the Royal Commission it said it would consult in 2018 to inform the ACT government’s position on introduction of Child Safe Standards. In the First Annual Progress Report (December 2018) the ACT government set out that consultation will take place on how providers of services to children in the ACT rated their own readiness for the introduction of Child Safe Standards.  The results of this consultation will be used to inform options for the implementation of the Child Safe Standards across government and non-government sectors.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the ACT government’s formal response to the Royal Commission it accepted both of these recommendations. It stated it will progress legislative change to ensure institutions have a legal duty to prevent institutional child sexual abuse. There was no update on the progress of these recommendations in the First Annual Progress Report.

Note: further information on the ACT response to the Royal Commission is at: www.act.gov.au/childabuseroyalcommission/home

New South Wales

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the NSW government formal response to the Royal Commission, the NSW government said it accepted the Child Safe Standard and it that it would undertake further work and consultation to consider the best way to ensure child-related organisations meet the Child Safe Standards identified by the Royal Commission. In the First Annual Progress Report, the NSW government identified that NSW is investing $3.8 million to resource the NSW Office of the Children’s Guardian to consult with affected sectors on implementing Child Safe Standards and to develop a scheme for the regulation of Child Safe Standards in organisations.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

This was accepted by the NSW government in the NSW government formal response to the Royal CommissionIn 2018, NSW passed changes to the Civil Liability Act 2002 to fulfil these recommendations. According to the First annual progress report, these laws:

  • Impose a statutory duty on organisations to prevent child abuse, where organisations will need to demonstrate that reasonable steps were taken to avoid the abuse.
  • Increase the scope of vicarious liability laws, so that organisations can be accountable for abuse committed by employees and people who are ‘akin to employees’, such as volunteers and clergy

Note: further Information on the NSW response to the Royal Commission is at: https://www.nsw.gov.au/improving-nsw/projects-and-initiatives/the-nsw-government-response-to-the-royal-commissions-final-report/

Northern Territory

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the Northern Territory government initial response to the Royal Commission, the NT accepted the Child Safe Standards and said Community Services Ministers agreed to adopt the National Child Safe Principles. The NT government also stated further legislative reform in this area was being considered as part of the development of a single Act to replace the Youth Justice Act and the Care and Protection of Children Act and that a flexible approach to implementation of the Child Safe Standards in the NT service context is likely to be required

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In September 2018 the NT government released a discussion paper called “Options for the implementation in the Northern Territory of the civil litigation reforms recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.” In this discussion paper, the government identifies a preference for adopting a model similar to Victoria. At present there is no update on the outcome of the discussion paper. 

Queensland

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the QLD government initial response to the Royal Commission, the QLD government accepted in principle the Royal Commission's Child Safe Standards and recognised the proposed standards represent best practice. As to whether or not the QLD government would require institutions to comply with the Child Safe Standard the QLD government committed to further consideration on the matter. In the First Annual Progress Report, the QLD government stated it “will now accept the Royal Commission’s Child Safe Standards and government departments providing services to, or working with, children will continue to incorporate the Child Safe Standards as best practice”. It also said that work is progressing on developing a model to implement and oversee Child Safe Standards in QLD across both government and non-government institutions.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the QLD Government initial response to the Royal Commission it said further consultation was being undertaken on these recommendations. In the First Annual Progress Report, the QLD government accepted these recommendations referring to the Civil Liability and Other Legislation Amendment Bill which was introduced to parliament on November 2018. The progress report noted this legislation seeks to impose a duty on institutions to take all reasonable steps to prevent sexual abuse of a child by a person associated with the institution while the child is under the institution’s care. As at February 2019 the legislation had not yet passed parliament. 

South Australia

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the SA government initial response to the Royal Commission these recommendations were accepted in principle. It government noted implementation would require all institutions engaged in child related work to meet the child safe standards via changes to the Children and Young People (Safety) Act 2017. In the First Annual Progress Report, the SA government reported that the Children and Young People (Safety) Act 2017 came into effect on 22 October 2018. It requires all state authorities, organisations and people undertaking child-related work to ensure their environments are safe for children and young people. The SA government is considering what additional guidance and materials are required to support organisations to understand and implement the COAG National Statement of Principles for Child Safe Organisations, with a particular focus on smaller organisations and sole traders.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the First annual progress report, the SA government accepted the intent of these recommendations stating that legislative reform is required and that government is in the planning stages of these recommendations.

Note: futher information on the SA response to the Royal Commission is at: https://www.childprotection.sa.gov.au/department/royal-commissions-and-reviews/royal-commission-institutional-responses-child-sexual-abuse

Tasmania

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the Tas government initial response to the Royal Commission, the government accepted in principle this recommendation but noted the need to consider how compliance will be monitored and that legislation will need to be developed to implement this recommendation. In the First Year Progress Report and Action Plan, the government identified that work (including the development of options for a child safe legislative framework in Tasmania) will commence in January-June 2019.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the Tas government initial response to the Royal Commission, the government accepted these recommendations in principle, noting it would monitor progress in other jurisdictions. There was no update on the implementation of these recommendations in the October 2018 First Year Progress Report and Action Plan.

Victoria

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the Vic government initial response to the Royal Commission the government accepted these recommendations. The Vic government response to the Royal Commission into Institutional Child Sexual Abuse website sets out that Victorian has already implemented child safe standards.

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the Vic government initial response to the Royal Commission the government accepted these recommendations. The Vic government response to the Royal Commission into Institutional Child Sexual Abuse website sets out that Victorian has already implemented child safe standards.

Note: Further information on the VIC response to the Royal Commission is at: https://www.justice.vic.gov.au/institutionalchildsexualabuse

Western Australia

Recommendation 6.4, 6.5 and 6.8 (Making Institutions Child Safe Report)

In the WA initial response to the Royal Commission, the government agreed in principle to accept these recommendations in principle. It appears from the First Year Progress Report that one of the 2019-2020 priorities of the WA government will be to ensure all institutions implement Child Safe Standards

Recommendation 91 and 92 (Redress and Civil Litigation Report)

In the WA initial response to the Royal Commission, the government stated further consideration would be undertaken on these recommendations. In the First Year Progress Report, the WA government stated it would release a Discussion Paper on this issue (which once finalised) would be circulated for stakeholder feedback. Input received on the matters addressed in the Discussion Paper will inform the government’s response

Note: Further information on the WA response to the Royal Commission is at: https://www.dpc.wa.gov.au/ProjectsandSpecialEvents/Royal-Commission/Pages/default.aspx

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