Page 3048 - Week 08 - Thursday, 16 August 2018
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
The bill allows a court to make an order to appoint a trust as defendant to a child abuse claim if the unincorporated body controls the trust. This applies to all trusts relating to all property, including superannuation trusts, a trust created by will or settlement, a trust created by legislation, and trusts of business assets. The bill enables a related trust to direct trust funds to the settlement of a child abuse claim and provides protection for trustees contemplating using trust property in a way that might otherwise be unlawful to meet claims.
The appointment of a related trust as proper defendant ensures that survivors are not prevented from having their claim heard solely because of the technical legal structure of the organisation against which the claim is brought. A nominated or appointed proper defendant will stand in the shoes of the unincorporated body for the civil proceedings. Therefore, an existing cause of action against the unincorporated body will need to exist to bring the claim.
The royal commission discussion of legal duties demonstrates that claimants will face challenges in identifying a claim against an unincorporated body, even where a proper defendant is nominated or appointed as the legal entity to sue. However, there are situations where a claim could be available—for example, where the nominated entity or related trust had some involvement in employment decisions.
The bill provides greater certainty for these claimants by avoiding or reducing the possibility that the claimant may succeed in establishing liability but not receive any financial benefit because the defendant is unincorporated. The bill applies retrospectively and prospectively, which is consistent with the royal commission’s recommendation. This ensures that all survivors are able to sue unincorporated bodies for child abuse, regardless of when that abuse occurred.
Preventing child abuse from happening in the first place is the most important goal of the reforms recommended by the royal commission. But it is also important that, as a community, where we have failed children and institutional child abuse has occurred, changes are made to the law which acknowledge the importance of a survivor having the opportunity for full consideration of the merits of their claim.
The government has accepted all of the royal commission’s civil litigation recommendations and is committed to making civil litigation a more effective means of providing justice for survivors. The government has already addressed the royal commission’s recommendations about limitation periods in full. This was achieved by removing limitation periods for civil actions for child abuse in the Civil Law (Wrongs) Act 2002 and the Limitation Act 1985.
The ACT is participating in the national redress scheme. The scheme is intended to recognise and alleviate the impact of past institutional child sexual abuse, in particular for survivors who cannot meet the higher evidential thresholds of civil litigation. The remaining civil litigation recommendations are being progressed separately, in particular, those relating to imposing new duties on institutions to prevent child abuse.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video