Civil Liability and Other Legislation Amendment Bill 2018
Plain English Summary
Overview
This bill implements key recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. It amends the Civil Liability Act 2003 to reverse the burden of proof so institutions must demonstrate they took reasonable steps to prevent child sexual abuse, and creates a legal framework for suing unincorporated organisations like churches that could previously avoid liability.
Who it affects
Primarily benefits survivors of institutional child sexual abuse by removing legal barriers to seeking compensation. Institutions such as churches, schools and youth organisations now face stricter accountability and must prove they acted to prevent abuse.
Key changes
- Institutions must prove they took all reasonable steps to prevent child sexual abuse, rather than survivors having to prove negligence
- Unincorporated organisations (such as churches) can now be sued by nominating a proper defendant or through current office holders
- If no defendant is nominated within 120 days, courts can order claims to proceed against trustees of associated trusts
- Institutional and trust assets can be used to pay compensation, preventing organisations from sheltering assets to avoid liability
- Closes the 'Ellis defence' loophole that allowed some organisations to escape liability because they had no legal identity
- Children awarded wrongful death damages can now recover trustee management fees so their award is not reduced by fund management costs
Bill Story
The journey of this bill through Parliament, including debate and recorded votes.
▸Committee15 Nov 2018View Hansard
Referred to Legal Affairs and Community Safety Committee
The Legal Affairs and Community Safety Committee examined the Civil Liability and Other Legislation Amendment Bill 2018 over several months, receiving submissions and holding public hearings. The committee recommended the bill be passed, finding that the reforms would improve fair access and outcomes for survivors of institutional child sexual abuse seeking civil damages. Opposition members filed a statement of reservation raising concerns about the absence of retrospectivity, the limitation of the bill to sexual abuse only, and the lack of vicarious liability provisions.
Key findings (5)
- The bill implements recommendations 91 to 94 of the Royal Commission into Institutional Responses to Child Sexual Abuse's Redress and Civil Litigation Report, introducing a duty of care on institutions with a reverse onus of proof.
- Stakeholders broadly supported the bill's intent but raised concerns about its prospective-only application, meaning past cases of abuse would not be covered by the new provisions.
- The Australian Lawyers Alliance and other submitters argued the bill should also introduce vicarious liability consistent with Royal Commission recommendations 89 and 90, rather than relying solely on a duty of care model.
- The Queensland Law Society raised concerns that the definition of 'associated trust' in the bill was broader than the Royal Commission intended, potentially capturing trusts not connected to institutional abuse.
- The committee examined the reversal of the onus of proof in civil matters and found it was justified, noting institutions are best placed to demonstrate they took all reasonable steps to prevent abuse.
Recommendations (1)
- The committee recommends the Civil Liability and Other Legislation Amendment Bill 2018 be passed.
Committee report tabled
▸Second Reading12 June 2019View Hansard
▸30 members spoke24 support6 mixed
Supported the bill but criticised the government for delays and for not implementing royal commission recommendations 89 and 90 on non-delegable duty. Welcomed the government's adoption of the LNP amendment to extend the definition of abuse to include physical abuse.
“The LNP will always fight for laws that ensure that the process is clear and consistent for survivors of child abuse to get their justice. We will support the amendment Labor has adopted from the LNP relating to the definition of abuse and we will not be opposing this bill.”— 2019-10-23View Hansard
Supported the bill as committee chair, outlining its implementation of royal commission recommendations 91 to 94 on reverse onus of proof and proper defendant framework for institutional child sexual abuse claims.
“The main objective of the bill is to amend the Civil Liability Act 2003 in response to recommendations 91 to 94 of the Redress and civil litigation report of the Royal Commission into Institutional Responses to Child Sexual Abuse.”— 2019-10-22View Hansard
As Attorney-General, moved the second reading and explained the bill's implementation of royal commission recommendations 91-94. Foreshadowed amendments to strengthen the framework including expanded court powers over associated trusts, clarified apology provisions, and consistency with other jurisdictions.
“My hope is that this bill provides a greater opportunity for survivors' voices to be heard and for justice to be done.”— 2019-06-12View Hansard
Introduced the bill as Attorney-General, outlining reforms including lemon laws for motor vehicles, QCAT operational improvements, and changes to civil liability and retirement village legislation.
“This bill will introduce motor vehicle lemon laws into Queensland for the first time.”— 2019-04-02View Hansard
As Minister for Child Safety, strongly supported the bill and government amendments extending the definition of abuse to include serious physical and psychological abuse and removing limitation periods for these claims.
“Today we are saying to victims and survivors of other forms of institutional child abuse: we see you, we believe you and we support you.”— 2019-10-23View Hansard
Supported the bill as addressing power imbalances between abuse victims and institutions, welcoming the reverse onus of proof and proper defendant provisions, and paying tribute to submitters.
“The reverse onus of proof is favourable because, as I say, it addresses the power imbalance and ensures that the survivor does not have to prove the wrongdoing, which is the truly difficult part for someone in those circumstances.”— 2019-10-22View Hansard
Supported the bill but argued it does not go far enough, foreshadowing opposition amendments to broaden the definition of abuse to include physical abuse and to introduce vicarious liability consistent with the royal commission's recommendations and New South Wales legislation.
“I am staggered that the Labor government could be so dismissive of the royal commission recommendation, a royal commission that was the result of five years of detailed evidence and analysis.”— 2019-06-12View Hansard
Confirmed the LNP would not oppose the bill but raised concerns about QCAT's chronic under-resourcing and questioned whether new laws would be effective without adequate tribunal funding.
“The LNP will not be opposing the Civil Liability and Other Legislation Amendment Bill.”— 2019-04-02View Hansard
Supported the bill but maintained concerns about the failure to implement recommendations 89 and 90 on non-delegable duty. Welcomed the expanded definition of abuse as a victory for survivors.
“The recent announcement by the Attorney-General and the Minister for Child Safety, Youth and Women that the definition of abuse will be extended to include serious physical and psychological abuse as well as sexual abuse is welcome news and a major victory for Queensland's survivors of institutional abuse.”— 2019-10-23View Hansard
Supported the bill, arguing the reverse onus of proof was justified to address the power imbalance for survivors and that institutions should be held liable where they fail to take reasonable steps to protect children.
“Where an institution clearly fails in its obligations, where it has been negligent, where it has not taken reasonable steps to protect a child, then it should be held liable.”— 2019-10-22View Hansard
Supported the bill, particularly the lemon law provisions, sharing constituent experiences with defective motor vehicles and praising the consumer protections.
“I am delighted that these reforms have been included in this bill. These lemon laws will make a real difference to everyday Queenslanders.”— 2019-04-02View Hansard
Spoke passionately as a survivor himself and long-term board member of Bravehearts. Supported the bill and the expanded definition of abuse, but expressed disappointment that action was not taken sooner.
“I rise to also speak in support of the Civil Liability and Other Legislation Amendment Bill 2018.”— 2019-10-23View Hansard
Supported the bill's objectives and the LNP would not oppose it, but criticised it for falling short by lacking retrospectivity, limiting abuse to sexual abuse only, and failing to adopt vicarious liability recommendations 89 and 90.
“The objectives of this bill are certainly noble and well-intentioned, which is why the LNP will not be opposing it. Unfortunately, good intentions do not always mean good legislation and this bill happens to fall short in that category.”— 2019-10-22View Hansard
Supported the bill, particularly consumer protection provisions for motor vehicles, and raised concerns about retirement village management practices in his electorate.
“I support this bill. The lemon laws will give consumers confidence when purchasing a motor vehicle.”— 2019-04-02View Hansard
Made a brief contribution supporting the bill. Expressed strong opposition to child abuse and welcomed amendments to expand the definition of abuse.
“At the outset, let me say that I find nothing more abhorrent than the abuse of a child.”— 2019-10-23View Hansard
Supported the bill as a former school principal, emphasising the justified reversal of onus of proof and the importance of ensuring institutions maintain proper governance to protect children.
“In introducing this reform, children harmed are allowed equal and fair access to justice where they are not burdened by the current onus to demonstrate that an institution breached its duty of care.”— 2019-10-22View Hansard
Supported the bill, highlighting the retirement village amendments and QCAT improvements as beneficial for his constituents.
“I commend this bill to the House. These are important reforms that will benefit Queenslanders.”— 2019-04-02View Hansard
As Attorney-General, delivered the reply speech defending the government's approach of a reverse onus duty rather than strict liability non-delegable duty. Explained concerns that strict liability could create perverse incentives for institutions to discredit survivors. Moved extensive government amendments expanding the bill to cover physical and psychological abuse.
“For the survivors, the stakeholders who are present in the gallery today... this House says with one united, unified voice: we believe you and we support you.”— 2019-10-23View Hansard
Had residual concerns about the reverse onus of proof burdening small not-for-profit organisations, but shared a personal story of his father's institutional abuse and acknowledged the legislation as good.
“My father grew up in an institution and was flogged every day—and that did not happen just for days; it happened for years.”— 2019-10-22View Hansard
Supported the bill, acknowledging the suffering of children at St Joseph's Orphanage Neerkol near Rockhampton and calling on all institutions to sign up to the National Redress Scheme.
“Neerkol was a horror movie in real-life for the children who lived there. The Rockhampton region must never forget the awful, horrendous and appalling treatment of children in a place where they were supposed to be cared for.”— 2019-10-22View Hansard
Unreservedly supportive of implementing the commission's recommendations but criticised the government for initially neglecting vicarious liability and limiting abuse to sexual abuse, welcoming the Attorney-General's amendments.
“I am unreservedly supportive of implementing the commission's recommendations. I am also supportive of the passing of this important bill which makes important changes.”— 2019-10-22View Hansard
Supported the bill, sharing a deeply personal story of a friend who survived institutional child sexual abuse and is currently going through the civil legal process.
“He told me that the legislation we are putting forward today is another way of making the system better for others.”— 2019-10-22View Hansard
Supported the bill's implementation of royal commission recommendations, noting that Labor adopted the LNP position to extend the definition of abuse to include physical abuse.
“I note that today Labor has adopted the LNP position to extend the definition of abuse to include physical abuse, not just sexual abuse. This is good news and is a result of the lobbying of victims.”— 2019-10-22View Hansard
Supported the bill as improving fair access to justice for survivors of institutional child sexual abuse through reverse onus of proof and proper defendant framework.
“This bill gives a voice to survivors of institutional child sexual abuse by issuing reforms that allow fairer access to justice by making it easier for survivors to seek damages against institutions which failed to provide proper care for them many years ago.”— 2019-10-22View Hansard
Did not oppose the bill but raised concerns about unintended consequences for volunteer organisations and community sporting clubs, and criticised the government for cherrypicking royal commission recommendations.
“These reforms are supposed to deliver national uniformity. This bill does not. Queensland will have a different framework from other states which have followed the royal commission's recommendations.”— 2019-10-22View Hansard
Supported the bill, praising the reversal of onus of proof as a monumental step and acknowledging Julia Gillard's role in establishing the royal commission.
“What this bill does is put in place a reversal of onus of proof; that is, where a plaintiff in a normal case would need to prove that a duty was breached, it is now upon the institution to prove that it did not breach its duty of care.”— 2019-10-22View Hansard
Supported the bill as important reforms for survivors, detailing the mechanisms for reverse onus of proof and nomination of proper defendants.
“This bill represents a very important and extensive body of work to assist victims of institutional child sexual abuse get justice.”— 2019-10-22View Hansard
Welcomed the bill and the government's amendments to include physical abuse, but criticised the failure to legislate strict liability as per recommendations 89 and 90 and the proposed shield for apologies from being used as evidence.
“Without strict liability, this bill will deliver fewer rights to survivors of abuse than they already have under common law.”— 2019-10-22View Hansard
Supported the bill as implementing key royal commission reforms, emphasising the reverse onus of proof and proper defendant framework, and welcoming the extension to include physical and psychological abuse.
“Not only will these changes ensure victims can more effectively pursue civil litigation; they will go a long way to preventing institutional child sexual abuse.”— 2019-10-22View Hansard
Acknowledged the bill's intent and noted Labor adopted the LNP amendment to extend the definition of abuse, but criticised the two-year delay and called for more timely action on all recommendations.
“I note today that Labor has adopted our amendment to extend the definition of 'abuse' to include physical abuse and not just sexual abuse. This is good news and is a result of lobbying by victims and our work in highlighting the same amendment.”— 2019-10-22View Hansard
▸In Detail12 June 2019 – 23 Oct 2019View Hansard
Government amendments (Nos 1-27) expanding the bill to include serious physical abuse and connected psychological abuse in the definition of child abuse, removing limitation periods for civil actions arising from such abuse, and various technical amendments including provisions around associated trusts, proper defendants, and apology admissibility.
LNP amendment (No. 8) to insert a non-delegable duty on certain institutions (schools, detention centres, residential facilities, religious organisations) to prevent child abuse, with strict liability making institutions automatically liable where abuse was committed by associated persons.
That the amendment be agreed to
Vote on LNP amendment moved by Mr Janetzki to impose a non-delegable duty with strict liability on certain institutions (schools, detention centres, residential facilities, religious organisations) for child abuse, implementing royal commission recommendations 89 and 90. The government opposed the amendment arguing strict liability could create perverse incentives for institutions to discredit survivors. Defeated 37-46.
The motion was defeated.
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Ayes (37)
Noes (46)
Vote on a motion
Vote on the LNP's disallowance motion to overturn fee increases for vehicle access permits on North Stradbroke Island (Minjerribah) recreation areas. This division was unrelated to the Civil Liability bill and concerned the Recreation Areas Management (Fees) Amendment Regulation 2019.
The motion was rejected.
A formal vote on whether to accept a proposal — this could be the bill itself, an amendment, or another motion.
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Ayes (38)
Noes (49)
Moved the LNP amendment to impose a non-delegable duty with strict liability on certain institutions, implementing royal commission recommendations 89 and 90. Acknowledged the Attorney-General's arguments against but believed survivors wanted this duty implemented.
“I believe that an approach to adopt a non-delegable duty is wanted by survivors. I believe that there have been occasions where it is clear that this place must step up to make a difficult decision and introduce a non-delegable duty.”— 2019-10-23View Hansard