Legal Identity of Defendants (Organisational Child Abuse) Bill 2018

Legal Identity of Defendants (Organisational Child Abuse) Bill 2018

27 March 2018

Second reading

Debate resumed from 7 March; motion of Mr PAKULA (Attorney-General).

Mr PESUTTO (Hawthorn) (16:18:38) — I am very pleased this afternoon to rise and speak on the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018. It is particularly a pleasure to be able to speak on a bill for which there has almost entirely been bipartisan support over a number of years now, because it stems of course from the tragedies over many decades that were experienced by very innocent and almost always very young victims in a number of institutions throughout Victoria and indeed the country. For decades many of these victims had suffered in silence, and it was only through the work of some very brave survivors who stood up and spoke up that we were able to achieve reform. Chrissie and Anthony Foster were among many people who were very brave to raise their voices. Sadly, many lives were lost in the meantime, usually by victims through their own hand given the weight of grief and trauma they had suffered.

This state in particular — Victoria — can take some comfort that it has had a leading part in the changes which have occurred over recent years, beginning with, as I said, those agents of change, the Fosters and others, who were very brave, but also governments of both political persuasions. In particular I want to pay tribute to the former Baillieu and Napthine governments. It was of course under Premier Ted Baillieu that the Betrayal of Trust inquiry was established and did its landmark work. The Family and Community Development Committee was chaired by Georgie Crozier from the Legislative Council and its members included the member for Broadmeadows, the member for Ferntree Gully and the member for Thomastown, and members from the other place, Georgie Crozier, as I mentioned, and former members Andrea Coote and David O’Brien. Their work was profound, and we are still in the process of implementing a number of the changes that came out of that historic inquiry, including new criminal offences that were passed in the last year of the Napthine government.

We well remember that the Family and Community Development Committee handed down its report in November 2013. It was in I think May of 2014 that the Napthine government announced its response and began the work of implementing the recommendations of that committee. You will recall, Acting Speaker Spence, that some of the key reforms included introducing offences and making sure that those who are in a position to say something do say something. We introduced a new offence of failing to report child abuse where one knows and is reasonably in a position to take steps.

There was also sweeping reform to mandatory reporting requirements, working with children checks and reforms which affected the structure and operations of manifold organisations around the state, and those reforms have had an amazing effect on the culture of organisations. Organisations today are much more alert to the possibility of risks. They know that they cannot discharge their obligations by moving a problem somewhere else, which was of course one of the biggest problems with what happened. People who did not want to confront and discharge their obligations simply shifted the burden, the risk, the hurt and pain elsewhere, and people continued to suffer. Even today we see a number of legal actions that have been going on in recent months, including one at present where those sorts of allegations are being made. I make no comment on any existing matters, but the work of the Betrayal of Trust inquiry has had that profound effect.

The royal commission which was established by the federal government after the Betrayal of Trust inquiry had commenced has also delivered findings that will have far-reaching effects in this space. Victoria can claim and accept that it has had a very distinguished place in the reforms which we have been debating over recent times. I will even give the current government credit for its willingness and ability to continue that reform process, removing limitation periods, and I think just about every reform that the current government has proposed we have supported. On maybe one or two occasions we may have expressed some misgivings about operational aspects of the reforms, but we have never doubted each other’s commitment to wanting to deal with this. I think that is a fair comment to make about the government.

We lend our support to this bill. We think it is an appropriate step. It is tragic that victims have over many years suffered at the hands of evildoers who have abused them either physically and/or sexually. As if that abuse were not bad enough, if a victim then retained lawyers or legal representation, commenced a legal action and then were confronted with highly technical rules and defences which they might hopelessly misunderstand because it is not in their area of expertise, that would only aggravate the deep-seated pain and enduring trauma that a victim would feel.

There has never really been any great justification for the invoking of the types of defences by institutions and organisation where they would hide behind structural complexities to elude their liability for what had happened. I cannot think of any justification, particularly where claimants have had meritorious claims. They have gone to the trouble of pursuing their claims, and the only reason they have failed is because of the corporate structure or non-corporate structures, as the case might be, which would preclude their ability to seek compensation.

Arising out of the Betrayal of Trust work and the royal commission work were a number of recommendations which touched upon this space. This bill does not particularly give effect to recommendation 26.1 from the Betrayal of Trust report, which recommended a requirement that organisations incorporate, but this nevertheless is a very important step in that direction. It provides for a regime which I hope will never be necessary for a number of reasons, one being that I hope organisations and institutions would never seek to hide behind these complex corporate financial structures to avoid liability where a claimant has a meritorious claim for damages following sexual or physical abuse.

This bill purports to address the problems of the Ellis defence, where a claim that otherwise was successful and sound was ultimately unsuccessful because the claimant could not access the assets which would have supported the claim and resulted in damages simply because the body in that case was not an incorporated body capable of itself being sued.

My understanding from talking to various stakeholders is that this defence has not often been raised in litigation in Victoria, although I have also heard that it certainly has been raised in the past. So it remains a problem. I am given to understand, though, that organisations have been changing their structures to make them more transparent and to facilitate the ease with which a claimant who has a meritorious claim can pursue damages and recover their losses beyond the pain and suffering and special damages. We are going to support this bill. We think it is appropriate and will give further effect and dignity to the painful journeys of victims and their families.

Looking at what the bill does, it is a relatively simple bill. It is essentially establishing two means by which a claimant will be able to pursue an associated trust or a trustee more particularly where the non-government organisation (NGO) which is accused of breaching its duties by not preventing the child sexual abuse or child physical abuse is not in a position or capable of being sued. The bill talks about control. What it is purporting to do is offer an unincorporated association the means by which it can nominate effectively an associated trust which can serve as the appropriate and proper defendant, but it also provides that where that NGO fails to nominate a proper defendant within 120 days the plaintiff in that case can apply to the court for an order that the claim is to proceed against the trustees of an associated trust of an NGO on behalf of that NGO as a proper defendant.

Looking at it, I do not think it is likely that this bill will have great practical application if NGOs work towards incorporating and establishing a more transparent corporate structure to manage their affairs. But for those who do not, this will provide what appears to be to us a very sound means by which claimants can pursue their losses.

One area I was concerned about, which does appear to be addressed adequately in the bill, is whether in circumstances where trustees are pursued in their own right their own personal liability will be no greater than the assets or the value of the trust property. I think that is appropriate. My concern on that was that it is readily conceivable that even where a claimant has a meritorious claim a trustee may have had no knowledge or no active or contemporary connection to the operations of the NGO but may have been, by virtue of the extension provisions of the bill, made liable for something they knew nothing about and could have been significantly out of pocket where there was no fault on their part and more particularly no ability on their part to do anything about it necessarily. We are satisfied that the bill does make it adequately plain that in those cases a trustee will be liable up to the value of the assets of the trust, and we think that is wholly appropriate. I note that the bill does apply to abuse whenever it occurred, and in our view that is appropriate.

The bill is relatively simple. We want to place on record our thanks to all of those people, a couple of whom I mentioned, the Foster family, but also so many others who led to these changes. We are very happy to support this bill, and we wish it a very speedy passage through the Parliament.

About the Author