On 26 October 2018 the NSW Parliament passed legislation to introduce a statutory duty on both public sector agencies and private organisations to prevent the abuse of children.
The Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) (the ‘Act’) is part of a suite of reforms introduced by the NSW Government in response to the recommendations by the Royal Commission into Institutional Responses to Child Sex Abuse. The other reforms relate to the Child Protection (Working with Children) legislation and the Criminal (Child Sexual Abuse) legislation.
The majority of the Act commenced on 26 October 2018. The provisions relating to the proceedings against unincorporated organisations are yet to commence. The Act introduces three key concepts and will have significant implications for organisations which work with children.
Importantly, the effect of the Act is that an organisation with responsibility for children must ensure that appropriate policies are in place and implemented to demonstrate that reasonable steps have been taken to protect children. Services and facilities will need to be appropriately resourced to ensure that this occurs and insurance arrangements should be reviewed to ensure that potential liability is covered.
Duty of Care
The Act imposes liability on an organisation that exercises care, supervision or authority over children. It imposes a statutory duty on the organisation to take reasonable precautions to prevent child abuse by an individual associated with the organisation.
A breach of that duty will give rise to a claim for damages in negligence which may include damages for psychological or emotional harm suffered as a result of sexual or physical abuse.
The Act defines ‘organisation’ broadly to mean any organisation. It includes the public sector and would include bodies politic such as local councils.
‘Child abuse’ is defined to mean sexual or physical abuse of a child that is not lawful at the time it takes place.
Individuals ‘associated with’ an organisation include office holders such as councillors, general managers, officers, employees, volunteers, contractors and delegates.
An organisation would therefore have potential liability if a trainee, work experience student, parent or carer was to perpetrate an act of child abuse while performing a function ‘in connection with’ the organisation’s responsibility for the child. Given that many facilities and services with responsibility for children often obtain assistance from such individuals, organisations must now consider how best to manage this risk.
Even if services and facilities for children are provided in collaboration with other entities, communities and private agencies (which commonly occurs with public agencies), the delegation of care, supervision and authority over the child does not negate the duty of care. Each organisation remains responsible. This means that organisations which have delegated responsibility for children to another organisation will need to be satisfied that the other organisation has effective child safe policies and practices, and appropriate insurance in place.
The Act reverses the usual onus of proof in negligence cases so that it is the organisation which must prove that it discharged its duty of care by taking precautions to prevent the individual from perpetrating child abuse.
In determining whether reasonable precautions have been taken, a court may take any of the following into account:
- the nature of the organisation,
- the resources available to the organisation,
- the relationship between the organisation and the child,
- whether the care, supervision or authority has been delegated to another organisation,
- the role of the individual in the organisation,
- the level of control of the organisation over the individual,
- whether the organisation complied with the applicable standards for child safety, and
- any other relevant matters.
The NSW Office of the Children’s Guardian provides information on child safe policies and practices for organisations.
Prior to the introduction of this Act, employers could be vicariously liable for acts of child abuse by employees in certain circumstances. This Act extends vicarious liability to acts of individuals who are ‘akin to an employee‘.
An individual is ‘akin to an employee‘ if the individual carries out activities ‘as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation’. In this way, an organisation will become liable for persons who volunteer in services which involve responsibility for children.
An organisation will be vicariously liable if the organisation placed the employee in a role:
- in which the employee had authority, power or control over the child, the trust of the child or the ability to achieve intimacy with the child, and
- the performance by the employee of that role supplied the occasion for the employee to perpetrate the child abuse.
Liability for activities carried out by the individual for a recognised independent business or as an authorised carer providing out of home care under the Children and Young Persons (Care and Protection) Act 1998 are specifically excluded but it is not clear what constitutes a ‘recognised independent business’.
It is now incumbent on each organisation to ensure that child safety informs its strategy, resourcing and delivery plans, and that child safety policies and practices are regularly reviewed, updated and implemented. Compliance registers should allocate responsibility for reviewing and updating child protection legislative requirements.
For information about child protection reporting obligations please refer to our previous blog.
Organisations will need to review their staff recruitment and management policies and procedures. In particular, position descriptions should be developed for positions and volunteer roles that work with children that identify the requirements and training needs for the role.
If you have any questions about this blog, please contact Sue Puckeridge on 02 8235 9702 or Frances Richards on 02 8235 9707.