Australia: Limelight Issue No. 72: Child abuse

  • Multiple changes and proposed changes in Child Abuse protection
  • New laws in Victoria for organisational child abuse
  • Reportable Conduct Scheme
  • The Royal Commission's Recommendations


The legal landscape around child abuse and child protection is changing rapidly.

From 1 July 2017, amendments made to the Wrongs Act 1958 (Vic) impose a new duty of care on Victorian institutions that exercise care, supervision or authority over children. On the same day, the first part of the Victorian Reportable Conduct Scheme also commenced, imposing obligations on organisations to respond to and report allegations of "reportable conduct" by employees or volunteers.

On 14 August 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse released its report on Criminal Justice, making 85 recommendations for reforming the justice system across Australia in the area of child abuse.

Liability of organisations for child abuse – what the new laws mean

The amendments to the Victorian Wrongs Act have made organisational liability for child abuse clearer and easier to prove. An institution's duty is now "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 for the conduct of its employees and others connected to the institution".

This duty will apply both to those organisations that care for or supervise children, and to individuals associated with that organisation.

Shifting the Burden of Proof

In addition, the burden of proving the duty has been fulfilled sits with the institution. It must show that it took "reasonable precautions" to prevent abuse by an individual associated with the institution.

What is meant by "reasonable precautions" depends on several factors, including:

  • the nature of the institution;
  • resources reasonably available to it; and
  • the relationship between the institution and the child.

Reportable Conduct Scheme

The Reportable Conduct Scheme (Scheme) seeks to improve organisations' responses to allegations of child abuse and neglect by their workers and volunteers.

It ensures that the Commission for Children and Young People (CYP Commission), the body that replaced the Office of the Child Safety Commissioner and which is empowered to promote improvement in policies and practices that affect the safety and wellbeing of Victorian children, will be aware of allegations of certain types of employee misconduct involving children in certain organisations that exercise care, supervision and authority over children.

Requirements for heads of organisations

Under the Scheme, heads of relevant organisations are required to respond to allegations of child abuse (reportable conduct allegations) made against their office holders, employees (including a religious leader), contractors and volunteers.

They must notify the CYP Commission within three days of receiving a reportable conduct allegation and provide a progress update on their responses to such an allegation to the CYP Commission within thirty days.

The allegations do not have to be proven in order to be reportable.

Once investigated, heads of organisations must provide the findings of the investigation to the CYP Commission.

They should also:

  • have in place systems to prevent child abuse, and in case child abuse occurs, to ensure allegations can be brought to the attention of appropriate persons for investigation and response; and
  • report to Victoria Police as soon as they become aware that a reportable allegation may involve criminal conduct.

What types of organisations are covered by the Scheme?

Organisations are required to commence complying with the scheme in one of three phases over an 18-month period starting on 1 July 2017.

The first phase focuses on organisations that operate schools and provide government services.

The second phase encompasses religious bodies or organisations that operate residential facilities, overnight camps for children, care facilities, or a public health service.

The third phase includes approved education and care services, children services and prescribed arts centres (including museums), zoos and parks.

  • sexual offences;
  • sexual misconduct;
  • physical violence;
  • behaviour that is likely to cause significant emotiona or psychological harm; and
  • significant neglect of a child.

Allegations can be made about a conduct even though it occurred outside of the employee's work.

Failure to comply with the Scheme

It is an offence to fail to notify and update the Commission about reportable allegations.

Preparing for the implementation of the Scheme

Insurers need to be aware of the new laws and the potential for the vicarious assumption of liability by organisations for misconduct of employees or other associated members.

Royal Commission Recommendations

The Royal Commission into Institutional Responses to Child Sexual Abuse has recently made 85 recommendations to change the justice system to protect children from abuse. At least three of those changes, if implemented, may also have an impact on the civil liability of organisations.

One recommendation is to introduce legislation that would make failure to protect a child from abuse a crime. This would apply to people who have the power or the responsibility to stop a child from being abused, but fail to do so.

If an organisation knows there is a substantial risk that someone associated with their organisation will sexually abuse a child, but do not do anything about it, they would be criminally liable. It seems likely that a criminal conviction for failing to protect a child from abuse would make a claim in negligence against an individual, or institution, much easier to prove.

Grooming offences to be widened

"Grooming" refers to a preparatory stage of child sexual abuse, where an adult gains the trust of a child in order to take sexual advantage of the child.

In Victoria, the offence of grooming is already very widelydefined and covers any words or conduct. It also covers both the grooming of the child and the grooming of a person who has care or supervision of, or authority over, the child.

The Royal Commission has recommended that each state and territory government should introduce legislation to amend its criminal legislation to adopt a similarly-broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence, and the grooming of persons other than the child.

Again, the criminalisation of grooming conduct is likely to make claims for failure to stop grooming much easier to prove.

Tendency, coincidence evidence and joint trials

The Royal Commission also recommended that the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed. Specifically, the Royal Commission recommended greater admissibility of tendency and coincidence evidence and joint trials in certain circumstances.

In addition, the Royal Commission suggests that evidence of the defendant's prior convictions or acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it is otherwise admissible.

Making convictions easier in the criminal context may well lead to similar changes in the civil context. The civil standard of proof is already lower than the criminal law, but these changes, if made, may strengthen the argument to mirror the changes in civil law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions