The Andrews Labor Government today passed new laws quashing a 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 civil lawsuits.
The Ellis defence resulted from a 2007 New South Wales Court of Appeal decision that found unincorporated organisations using trusts to conduct their activities were not legal entities that could be sued in their own right.
Under the new laws, 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.
Importantly, property or assets held in trust by unincorporated organisations can now be used to satisfy a civil liability arising from child abuse if they fail to nominate a legal entity and the court is required to appoint one for them.
The new laws implement key recommendations from the Victorian Betrayal of Trust Report and the Royal Commission into Institutional Responses to Child Sexual Abuse 2015 Redress and Civil Litigation Report.
The new laws build on other legislative changes 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 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 was also the first to introduce a new ‘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 from occurring or face an automatic presumption that they failed in their duty of care.
Quotes attributable to Attorney-General Martin Pakula
“All child abuse survivors deserve equal rights to take legal action and seek redress, and these laws correct an unfair loophole that prevented many survivors from being able to sue the organisations responsible for their abuse.”
“These important changes deliver on recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse and the Victorian Parliament’s Betrayal of Trust report.”
“I acknowledge the immense courage of survivors and their families who continue to speak out about past organisational child abuse. Their stories are why we have passed this important new law today.”
Reviewed 19 August 2020