Jenny Leong MP, Member for Newtown spoke on behalf of the Greens on the bill, which makes it easier for victims of child sexual abuse in institutions to prove that the organisations under whose auspices they were abused were legally liable.
Ms JENNY LEONG (Newtown) (17:08): I speak on behalf of The Greens on the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018. This bill seeks to make it easier for victims of child sexual abuse in institutions to prove that the organisations under whose auspices they were abused were legally liable for that abuse. It does so by creating a duty on organisations to prevent child abuse and to create a legal presumption that an organisation has breached the duty if a child for which it has responsibility is subjected to child abuse by an individual associated with the organisation.
There is a reverse onus of proof on this offence, meaning the institution itself has the burden of proving it took all reasonable steps to protect children in its care. Such organisations are taken to include incorporated and non‑incorporated associations and public sector organisations, though not the State itself. Successors to an organisation are considered part of the same organisation. This makes tracing liability much simpler, particularly if an organisation undergoes a number of reinventions over the years. The bill will also make organisations vicariously liable for child abuse committed by employees and persons akin to employees—for instance, this would include members of clergy. A further change will be made that allows victims to bring civil proceedings against unincorporated organisations that may be liable for the abuse.
The Greens support this bill, and in doing so commit to continue to work to ensure that barriers to justice for victims of child sexual abuse are removed from the law of New South Wales. It is clear that the power imbalance regarding young people connected with these organisations and institutions does not favour these vulnerable young people who face and risk child abuse. The law needs to step in to provide protection, support and assistance to them and also to the victims of child sexual abuse of the past.
I acknowledge Greens member Mr David Shoebridge, MLC, for his commitment to this work. He has worked tirelessly with communities, survivors and other people on this issue since he first entered Parliament. He told me that, when he was elected, one of the first issues raised with him as the justice spokesperson for The Greens related to access to civil claims for victims of child sexual abuse and particularly what is known as the Ellis defence. It is very significant, not only to Mr David Shoebridge but also to survivors and their families and loved ones who have seen them suffer and been impacted by this injustice, that this bill finally overturns that defence. It is a testament to the work of John Ellis and many survivors and their advocates that we are finally removing this obstacle to justice.
The Ellis defence is the apparently paradoxical position faced by victims of child sexual abuse when they attempt to seek compensation from the Catholic Church. Even if they are successful in the court, they may find that there is no institution called the "Catholic Church" at law which holds assets that would enable it to pay compensation. This is in part due to the legal structure of the church: The Catholic Church Property Trust holds the church's assets, and church lawyers argue that this trust was not responsible for the abuse and therefore cannot be held liable. It is truly disgusting to consider or fathom that argument would be made but—lo and behold!—it is. This is a nasty legal fiction, and it has been a constant feature of Mr David Shoebridge's attempts, since he was elected, to have this obstacle to justice removed. It is due to the tireless efforts of so many people that we are seeing this change implemented in this legislation.
This bill implements the royal commission's recommendation to enable survivors to identify a proper defendant to sue. This is an important step which practically assists victims to seek compensation through the courts if they so choose, and in doing so rebalances the power between the organisation and the individual that in so many cases has served as an obstacle to justice. The Ellis defence was used as a bargaining tool by church lawyers to reduce compensation offers to victims of abuse with the rationale that they likely could not get any money through a civil suit, so they should settle for less. The changes in this bill operate retrospectively as well as prospectively.
It is truly horrifying to imagine a situation where someone has gone through the trauma of child abuse. It is horrifying to see a family member or loved one go through that trauma and have their faith in organisations and institutions completely removed as a result of the lack of trust that they would now have in the institutions and organisations that wielded completely uncontained power over them when they were vulnerable children. But then to see the lawyers, the advocates of the Catholic Church, seek to further impose injustice and harm on them by using this defence as a bargaining tool to get out of paying what would be just and reasonable compensation for the trauma caused is even more horrifying.
The Government has indicated that this bill is the final part of its implementation of recommendations for reforming civil litigation for victims of child sexual abuse. I note that the Government has committed to provide annual progress reports to Parliament. There are some areas that the Greens will continue to work closely with the community in in order to pursue justice and the implementation of all of those recommendations.
Too often we have seen recommendations of royal commissions languish, so in this case credit should be given to the witnesses and the brave contributions of so many survivors that have enabled changes to be made and some of the recommendations to be implemented. It is truly heartening for those who showed the strength and courage to participate in the royal commission. Things were done to them and they suffered injustices and abuse that no individual, particularly no child, should ever have to suffer. I commend the bill to the House.