The Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 is set to commence in South Australia on 1 August 2022, improving access to civil redress by survivors of child abuse.
What changes are being made?
The Amendment Act makes 4 key changes to the Civil Liability Act 1936.
The Amendment Act provides that an institution will be vicariously liable for abuse committed by an employee if:
- the institution placed the employee into a role and their performance of that role supplied the occasion for the abuse to occur; and
- the employee took advantage of that occasion to abuse the child.
This vicarious liability is extended to abuse committed by a person/s whose relationship with the institution is ‘akin to employment’.
Under the previous legislation, a person believed to have experienced child abuse while receiving services from someone associated with the institution, had to prove that the organisation was negligent and this negligence enabled the abuse.
The Amendment Act shifts the onus of proof from the victim to the organisation where the person who abused the child or young person works or worked at the time of the abuse.
This can include an:
- office holder
- minister of religion
- owner or representative of the institution.
Institutions are responsible for taking all reasonable steps to prevent sexual and serious physical abuse of children and young people by a person associated with the institution. The responsibility cannot be delegated.
The institution is assumed to have breached its statutory duty to protect the child or young person unless it can prove that it was not negligent in providing services to the child or young person.
Having child safe policies in place, lodging a Child Safe Environments Compliance Statement with the Department of Human Services and meeting Working with Children Checks requirements are all steps that youth-serving organisations should take to demonstrate that they are fulfilling their legal obligations.
Under previous legislation, some victims were not able to access compensation because of the way the organisation is structured, for example where its assets are held in a property trust.
The Amendment Act now enables victims of child abuse to seek compensation from an unincorporated association, and for liability to be satisfied from assets in an associated trust.
This also applies to institutions where their structure has changed over time, ensuring that institutions are held accountable for past abuse.
The Amendment Act applies retrospectively and gives victims (who were previously disadvantaged at the time they entered into a settlement agreement) the opportunity to apply to the court to have their previous settlement agreement set aside.
The disadvantage could be that they entered into a settlement agreement due to a previous time limit applying or because the institution was an unincorporated association.
This means that new legal action can be taken, including against unincorporated associations, where this was not possible previously.
The court will consider the circumstances of the previous agreement and how much the previous legal barriers contributed to the victim’s decision to enter into the agreement.
Making a claim
Individuals who want to make a claim or understand how the Act may impact their personal circumstances, or organisations that may receive a claim under the new laws should seek independent legal advice.
The Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Protection Systems Royal Commission made recommendations intended to improve access to justice for people who have experienced institutional child sexual abuse.
The Amendment Act is one of the responses to the recommendations.