In brief - Institutions covered by the Bill should review their child protection policies and procedures, and consider their liability risk
The purpose of this Bill is to bring Queensland's response to institutional child abuse into line with the other states, while giving effect to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse.
Definitions of child abuse, duty of care, institution and official to be included in Civil Liability Act
The Bill proposes to amend the CLA by including the following definitions:
The proposed definition of child abuse will include sexual assault, serious physical abuse and any other abuse perpetrated in connection with the sexual or serious abuse. The definition is not explicit, and does not include any examples of conduct that may be classified as serious physical abuse or any other abuse. However, it is likely that the definition will include psychological abuse, such as threats to children to not report the abuse after it has occurred.
The significance of this definition is that it expands the definition of child sexual abuse to include non-sexual and non-physical abuse stemming from either the sexual or serious physical abuse. The operation of this expanded definition is not just prospective. As a consequence, any child that has suffered serious physical abuse, before or after the commencement of the Bill, will be able to bring a claim for compensation arising from that abuse.
Duty of care
The proposed definition of duty of care will include a non-delegable duty for institutions to ensure a child does not suffer abuse. This is significant. It means that institutions may be vicariously liable for child abuse, which may amount to criminal conduct, committed by its volunteers, employees, students or members.
The proposed definition of institution includes any entity that has had a child in its care or supervision or provides activities, facilities, programs or services of any kind that has given a person an opportunity to have contact with a child. Related entities of the institution include any entity that provides activities, facilities or services for the institution.
This is a very broad definition, and may cover institutions such as universities, shopping centres, gyms, sporting clubs, libraries or any entity which provides care or supervision of children.
The Bill also provides that if an institution is not capable of being sued, either at law or because of its financial position, then it must nominate a defendant who is capable of being sued. Consequently, trustees may be held responsible at law for any liability arising from a breach of the institution's duty. This provision is designed to prevent institutions from hiding behind their legal structure to avoid a claim.
The proposed definition of an official of an institution includes any representatives of the institution or related entity, members, officers, employees, associates, contractors, or volunteers; any person or institution given delegated care of supervision over the child, and any other person who should be considered an official.
Again, this is a very broad definition, and may cover delegated services such as sub-contractors and volunteers.
Amendment of the Limitations of Actions Act and Personal Injuries Proceedings Act
Currently under the LAA and PIPA, there is no time limitation period for bringing a claim regarding "child sexual abuse". The Bill amends the LAA and PIPA to expand the "no limitation period" for "child sexual abuse" to encompass the broader "child abuse" definition.
This new definition may have significant ramifications for institutions such as boarding schools, universities, child care and hospitals, as individuals now have the ability to bring a claim against these institutions for serious physical abuse or psychological harm they suffered as a child at any time they were in the institution's care.
Institutions should also note that if they are currently responding to a sexual abuse claim, or if they anticipate any such claim, that in future such claims will likely include compensation for related physical or psychological abuse.
How should institutions prepare for Civil Liability (Institutional Child Abuse) Amendment Bill changes?
To assist with discharging the obligation to ensure child protection from sexual, physical or psychological abuse, any business or entity which has (or previously had) contact with children through formal programs, work experience, placements, care or supervisions programs, must ensure that they have child protection processes in place.
Before the Bill becomes law, institutions should review their child protection policies and procedures to:
- consider the scope of the Bill and whether they are likely to be covered. If children visit the premises or engage with staff, volunteers or students (i.e. are they participating in any activities or services or in the care of the institution?) then your organisation is likely covered by the reforms
- if so, ensure that the policies reflect the expanded definitions of child abuse. If your organisation does not have a policy, take steps to implement one as well as providing regular training
- consider whether any of their representatives fall within the definition of "official", and ensure appropriate training is provided to all officials, and
- understand the ramifications of the extended definition of child abuse and prepare for any potential claims
If an institution determines that they are covered, they should contact their insurer to determine if they have insurance for such claims against the institution, directors, any "nominated defendants" or trustees.
Institutions who believe they will fall within these new definitions should seek legal advice as to whether the institution may be affected by these changes.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.