The Andrews Labor Government will today introduce new laws to quash an unfair legal loophole preventing child abuse survivors from suing some organisations for their abuse.
The Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 will prevent unincorporated organisations from relying upon a legal technicality – known as the ‘Ellis defence’ – to avoid being sued.
The Ellis defence resulted from a 2007 New South Wales Court of Appeal decision that found unincorporated organisations using trusts to conduct their activities did not legally exist and could not be sued in their own right.
Under the Labor Government reforms, unincorporated organisations – including religious institutions – will be given an opportunity to nominate a legal entity with sufficient assets for child abuse survivors to sue.
If an organisation does not comply with the new laws, courts will have powers to appoint the unincorporated organisation’s associated trusts to be sued on their behalf and pay compensation to victims.
Attempts to stall proceedings will be thwarted by ensuring that cases can still begin or continue while an appointment of a legal entity is pending.
The reforms implement key recommendations from the Victorian Betrayal of Trust Report, and the Redress and Civil Litigation Report by the Royal Commission into Institutional Responses to Child Sexual Abuse.
The laws also build on other legislative changes we have introduced to remove a range of hurdles faced by child abuse survivors seeking compensation from organisations associated with their abuse.
In an Australian first in 2015, the Labor Government abolished civil claim time limits for child abuse survivors allowing lawsuits to be lodged regardless of how long ago the abuse occurred.
In 2017, the Government introduced an Australian-first ‘duty of care’ for organisations exercising care, supervision or authority over children. Organisations must now demonstrate that reasonable precautions were taken to prevent child abuse or they face an automatic presumption that they failed in their duty of care.
Quotes attributable to Premier Daniel Andrews
"For too long a legal loophole has effectively prevented child abuse survivors from suing some organisations due to a technicality. We’re fixing that.”
“All survivors should have equal rights to take legal action and seek redress, and our laws will give them the chance to get the justice and compensation they deserve.”
Quotes attributable to Attorney-General Martin Pakula
“We’re changing the law so that all organisations, regardless of their legal structure, can be held to account for the harm caused to survivors of child abuse.”
“We have consulted closely with victim survivor groups, the courts, the legal profession and religious bodies to ensure that the reforms will deliver justice to victims.”
Reviewed 19 August 2020