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Justice Legislation Amendment (Organisational Liability for Child Abuse) Bill 2019

Parliamentary Activity - Tuesday, 24 September 2019, Cassy O'Connor MP


Ms O'CONNOR (Clark - Leader of the Greens) - Madam Deputy Speaker, the Greens will be supporting the Justice Legislation Amendment ( Organisational Liability for Child Abuse ) Bill 2019. We recognise this bill is a response to the royal commission's Redress and Civil Litigation Report which came out at the end of 2017 after an exhaustive process of listening to the survivors of child sexual abuse in Australia.

I commend the Attorney-General for the seriousness with which she has implemented the recommendations of the royal commission and at times when it has been hard to do so. The most specific example is the resistance you faced from Catholic Church leaders to the legislation we debated a month ago in this place that, for the purposes of the Children, Young Persons and their Families Act made mandatory reporters of members of parliament and members of the clergy. It took some guts, Attorney-General, to do that.

The royal commission was one of the most important, profound and, I think, for survivors of past sexual abuse, catalytic moments in Australia's history. It provided a lens on institutions which had been perpetrating harm and abuse on children for generations, through a formal royal commission process where perpetrators and the leaders of these institutions were cross-examined through a royal commission framework. It gave voice to survivors in cities, towns and centres around Australia and for many of these survivors, it was the first time they had really told their story and the first time they really felt heard.

Across the country, as the royal commission undertook its incredibly important work, there was horror and revulsion at what we were hearing about how children were treated by institutions in the past and, in some cases, in the not-too-distant past.

I take this opportunity to acknowledge that it was former prime minister Julia Gillard, again in an act of courage, who heard the voices of survivors and the families of those who did not survive, and committed to a thorough examination of our dark history and the establishment of a royal commission so that hopefully as a society we are never in this situation again. That is what this suite of reforms we have been debating in this place, and are being debated in parliaments around the country, are all about.

We should have the aspiration of a truly child-safe Tasmania, that no matter where a child is, when they are in the company of an adult, they are safe, but we know as a community we are some way from there and we need to make sure we have a legal framework in place that to the greatest extent possible protects children and prevents sexual abuse, and in the tragic and unforgiveable situation where it does happen, that there is recourse for survivors of that abuse.

This bill amends two pieces of legislation, the Civil Liability Act 2002 and the Limitation Act 1974. It imposes a non-transferable duty of care on organisations such that they must accept liability for child abuse committed by associated individuals, whether those individuals are office holders, employees, volunteers or any other individual associated with that organisation where they are coming into contact with vulnerable children.

This bill enshrines the vicarious liability of organisations. It enables proceedings against unincorporated organisations thereby requiring that a proper defendant can be identifiable in all cases, as well as removing the Ellis defence. When the royal commission's Redress and Civil Litigation Report was handed down and I was talking to key stakeholders in this area, I had not heard of the Ellis defence. I had not understood how pernicious the structures inside the Catholic Church were, such that they prevented adults who had been sexually abused as children from being able to seek civil redress, hiding behind legal technicalities. It was the Catholic Church that dug in and made no attempt to disavow the Ellis defence and, in fact, hid behind it until this point. It is very sad for good Catholics everywhere that the church leadership took this position throughout the royal commission. Friends of mine of Catholic faith have been very disappointed in the church leadership since we in this place passed the legislation that will remove the seal of the confessional for the purposes of the Children, Young Persons and Their Families Act. I acknowledge that when the church's leadership takes a position that, on the face of it, looks like a perpetuation of trying to protect abusers it does a terrible disservice to good people of Catholic faith everywhere.

This legislation also allows courts to set aside deeds of release from previous claims and it gives survivors the right to recourse and prevents institutions from hiding behind legal technicalities, like the Ellis defence.

Ms Haddad touched on the concerns that have been raised by a number of stakeholders in the consultation process. I particularly want to go to the Tasmania Law Reform Institute's submission. I recognise that of a range of matters that the Tasmania Law Reform Institute raised in response to the draft bill, the one suggestion that was made that was incorporated was the removal of the word 'serious' from the definition of child abuse that was included in the draft bill - 'serious' physical abuse. I note that it is only in relation to the changes to the Limitation Act that that word 'serious' remains in the definition.

We have been through the difference between the draft and the final bill that we are debating here today, and there are some reasonably substantial differences from the draft legislation, obviously based on the feedback. A number of matters raised by the Tasmania Law Reform Institute have not been dealt with and I am hoping the Attorney-General can respond to the questions that both Ms Haddad and I have asked about the TLRI's response.

We will just go through it. In the draft bill, section 49H (2) states:

An organisation that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse of the child in connection with the organisation's responsibility for the child.

As the TLRI points out, it

believes that this provision is problematic because it imposes liability on an organisation where only an associated individual perpetrates child abuse of a child in connection with the orga

nisation's responsibility for the child. The TLRI states that this is a complicated expression of the duty, in particular the meaning of the phrase - and this is quoting from the draft bill and the bill now - 'in connection with the organisation's responsibility for the child' could give rise to considerable interpretive difficulties. The TLRI makes a recommendation for a more concise and elegant form of words which are drawn from the Victorian -

 

Ms Archer - Wrongs Amendment (Organisational Child Abuse) Act.

 

Ms O'CONNOR - Yes, the wrongs amendment act. It could occasion similar problems and inconsistent interpretations to those that have occurred in relation to the phrase, 'in the course of employment' in the context of vicarious liability at common law section 9(2) of the Victorian Wrongs Amendment (Organisational Child Abuse) Act 2017.

The TLRI states that this interpretation avoids such difficulties by constructing this duty and consequent liability in a much simpler and more comprehensible way. It provides:

 

Liability of organisations -

(2) A relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of a child by an individual associated with the relevant organisation while a child is under the care, supervision or authority of the relevant organisation.

 

Perhaps the Attorney-General could explain why a decision was made not to adopt this recommendation from the TLRI because the Victorian provision does not use the problematic term 'in connection with' phrasing employed in the Tasmanian bill. Obviously, the changes were made in response to the concern about the use of the word 'serious' in the definitions of child abuse.

Another question I had related to section 49G(2) which is the same in both versions of the bill that we have, and the TLRI said this provision was very difficult to understand. When you have the law reform institute saying there is an opacity problem here, there really is one. In fact, says Dr Terese Henning, the author of this submission:

 

... I admit that I don't actually know what it means though I could possibly guess. I am not able to identify what aspect of the Royal Commission recommendations it addresses. I note that it replicates provisions in the New South Wales and Victorian reforms. ...

 

However, these provisions are not elucidatory.

Laws that are not readily comprehensible, particularly those that affect rights and liabilities, are not human rights compliant. It is therefore suggested that some thought be given to revising s49G(2) to make its meaning less opaque.

We have been through the bill and the meaning is just as opaque as it was previously and just so that people understand why the TLRI believes this has an interpretation problem, 49G(2):

An individual is not associated with an organisation solely because the organisation wholly or partly funds or regulates another organisation.

I, too, find that opaque and difficult to interpret. Perhaps the Attorney-General could give us a plain English explanation of that subclause in the draft bill.

 

Ms Archer - That was 49G(2)?

 

Ms O'CONNOR - Yes, thank you.

I note that concerns were raised by the Catholic Archdiocese of Hobart, but the Archdiocese had the grace not to not support the bill.

I note also a more comprehensive response to the draft bill was prepared by the Anglican Diocese of Hobart. In fact, I believe a number of the matters they raised in their submission were dealt with in the final bill.

Relationships Australia is an outstanding community service organisation which is picking up some of the pieces of historical child sexual abuse. I want to read into the Hansard, Mr Mat Rowell, the chief executive officer's response to the bill. It is strongly supportive.

 

... RA Tasmania commends the Government on this draft legislation. The amendments contained in it address a strengthening of organisational responsibility for the care of children, and their liability if abuse is perpetrated, which survivors would applaud.

 

The amendment that allows a Court to set aside previous settlements to pave the way for civil litigation is also in line with survivor commentary.

RA Tasmania considers this bill to be another vital step in achieving justice for survivors of institutional child sexual abuse, and ensuring all children are safe and protected.

Maybe I am an idealist, Madam Speaker, but I believe we are a different society from the society that had such systemic abuse and exploitation of children. We have suite of laws in place now which provide better protections for children, from the Young Persons and Their Families Act through to the working with vulnerable people legislation, which was brought in by me as minister under a Labor-Greens government, and the reforms that have come about as a response to the royal commission.

The legal framework is there to better protect children, but within some dark corners of our society children are still not safe. It was interesting to hear the word 'evil' used in the minister's second reading speech. It is probably the first in my 11 years that I have heard the word 'evil' used in a second reading speech, but there is evil on this Earth and there are evil people. I do not say that from a Judaeo-Christian point of view. Evil exists on this planet and one of the foundations of evil is a desire to harm or exploit another human being. There are still people in our society today who would hurt children and it is our responsibility in this place to make sure we have the strongest possible laws in place to protect children and to make sure they are given every opportunity to flourish, to feel safe, to be loved and valued.

If the Attorney-General could answer those few questions I have asked it would be appreciated. The other question I have, and you did go into some detail on it, is what can you as Attorney-General foresee a court understanding as 'reasonable precautions' to prevent the sexual or physical abuse of a child? What might constitute reasonable precautions for an organisation to have taken to protect a child?

In closing, I acknowledge the incredible strength and courage of the survivors of past sexual abuse. I acknowledge that there are some who did not make it, who could not live with that pain. I acknowledge that justice has caught up with a number of the perpetrators of past abuse, that Cardinal Pell is in jail and, for the one known survivor of Cardinal Pell's abuse, that is a measure of justice. It also sends a strong message out into the community that it does not matter how powerful you are, the law will catch up with you. I acknowledge the survivors of past sexual abuse and commit Dr Woodruff and I to doing everything in our capacity in this place every day to protect the interests of children. That is why we go on about climate change, because we see those children's faces and we know they are worried. We believe it is the responsibility of all the grownups in the room to show care and leadership for those children and young people. They are looking to us for it too. I am very comfortable supporting this legislation.