Page 3956 - Week 10 - Thursday, 20 September 2018
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The bill before this Assembly is broadly based on the Victorian Legal Identity of Defendants (Organisational Child Abuse) Bill 2018. In debate on that bill, Ms Kilkenny MP, a member of the Victorian Legislative Assembly, noted that the current common law position in Australia, based on the Ellis case, is unique to Australia. In the United States it is common practice that corporations such as churches are legally structured as a “corporation sole” and can therefore be sued. In England case law has overcome all of the issues that are raised in the Ellis case. Consultation undertaken for the purpose of the Victorian bill found that the strictly legalistic approach held by the church failed to address the issue of genuine accountability.
Today’s bill will help create a more equitable path to justice for survivors of institutional child sexual abuse. It provides greater certainty for these claimants by reducing the possibility that the claimant may succeed in establishing liability but not receive any financial benefit because the defendant is unincorporated.
These reforms will closely reflect the ACT community’s expectation about the support and access to justice that should be available to survivors of institutional child abuse. It will assist in ensuring that organisations are held to account for their failure to protect children under their care from abuse. These reforms give an unincorporated body the opportunity to nominate a proper defendant, or, if they fail to do so, provide for the court to be able to appoint a related trust as the proper defendant.
This achieves the balance suggested by the royal commission in recognising that corporations need to engage in their business in a multitude of ways, and should not be hindered from doing this, while making sure that a plaintiff is able to find a suitable defendant, regardless of the willingness of the corporation to nominate a proper defendant.
The ACT government has accepted all of the civil litigation recommendations from the royal commission’s report, and it is committed to addressing the current shortcomings in the legal system through these reforms to better protect children and to improve outcomes for survivors.
I would like to thank the members of the ACT Bar Association who engaged with the government to help craft this bill in the specific ACT context. By its nature, this is a highly technical subject, and the legal expertise of our local bar was invaluable in arriving at a well-drafted and effective result.
My directorate has also reached out across the social services sector and to churches to promote awareness of this change and to encourage them to review the legislation against their own particular circumstances. This government has clearly stated in its response to the royal commission that it would be bringing forward this change, and today we are implementing that commitment. I thank the social services sector and the churches for their engagement, and I note with warmth that some churches are already responding to the royal commission by establishing legal bodies that meet the criteria of this legislation around the country.
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