Victorian Wrongs Amendment (Organisational Child Abuse) Act 2017

This legislation, which amends the Victorian Wrongs Act 1958, came into effect on 1 July 2017. It will have significant impact on child care services in relation to liability for any child abuse that occurs to children in their care. The legislation has been introduced in response to issues identified by the Family and Community Development Committee of the Victorian Parliament (Betrayal of Trust Report) and the Royal Commission into Institutional Responses to Child Sexual Abuse. 

The aim of the legislation is to make it easier for those subject of child abuse, by certain organisations, to sue those organisations for damages. As stated by the Attorney General in the second reading speech before Parliament:

As recommended by Betrayal of Trust, the bill amends the Wrongs Act 1958 to create a duty of care that will allow an organisation to be held liable in negligence for specified contexts of organisational child abuse committed by individuals associated with the organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse.

Section 91(1) imposes the duty of care in negligence and section 91(2) outlines that duty:

A relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of

a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.

"Relevant organisation" is defined in section 88 as an "...entity (other than the State) organised for some end, purpose or work that exercises care, supervision or authority over children...". There are however, a number of qualifications to this definition, depending on its structure.
"Abuse" is defined as physical or sexual abuse (s.88). The terms physical and sexual abuse are also defined, as is "authority". 
Section 90 outlines the circumstances in which an individual is regarded as associated with a relevant organisation. The definition is very broad and, amongst other things, includes employees, volunteers, contractors and in some circumstances, where care, supervision or authority has been delegated or contracted out to another organisation.

Interestingly, section 91(3) provides that where abuse is established and is linked to the organisation:

...the relevant organisation is presumed to have breached the duty of care...unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.

  Note

Reasonable precautions will vary depending on factors including but not limited to —

(a) the nature of the relevant organisation; and

(b) the resources that are reasonably available to the relevant organisation; and

(c) the relationship between the relevant organisation and the child; and

(d) whether the relevant organisation has delegated the care, supervision or authority over the child to another organisation; and

(e) the role in the organisation of the perpetrator of the abuse.

The legislation only applies to abuse that occurs on or after 1 July 2017 (s.93).