Australian Charities and Not-for-profits Commission Act 2012
45‑5 Object of this Division
(a) manage their affairs openly, accountably and transparently;

Note: the point of this is that because charities (e.g. St. Ignatius College Riverview Ltd, Xavier College Ltd. , The Society of Jesus in Victoria Ltd.) receive large amounts of money (grants to schools) from the public purse
and have a Deductible Gift Recipient (DGR) status (tax free donations) and are exempt from paying income tax or land tax, they should be "open, accountable and transparent ".

November 9, 2021
NSW allows courts to break unfair settlements forced on child sexual abuse survivors by churches
New South Wales will allow courts to break unfair settlements forced on child sexual abuse survivors by churches and other institutions and will allow them to bypass gag orders preventing them from speaking out publicly.

NSW is not alone in introducing such laws. Similar reforms have been made in Queensland, Victoria, Tasmania, Western Australia and the Northern Territory.
♦ NSW allows courts to break unfair settlements forced on child sexual abuse survivors by churches


DEED OF RELEASE SET ASIDE October 1, 2020
Church's legal defence 'dismantled' after sex abuse pay-off thrown out.
A victim of sexual abuse who signed away his rights to sue the Catholic Church has had the settlement overturned in a landmark Supreme Court judgment, paving the way for hundreds of other survivors to seek compensation.

The man, known as WCB, was paid $32,500 in 1996 in exchange for his silence after he was repeatedly sexually abused as an altar boy by Warragul priest Daniel Hourigan.
On Wednesday, the Supreme Court overturned the deed of release, removing the legal barriers for WCB to sue the Catholic Church for damages.
Justice Andrew Keogh described the abuse as "horrendous" and said the evidence supported a "significant assessment of damages" for WCB.
♦ theage.com.au

Then they appealed....

December 18, 2020 - Church’s appeal loss paves way for abuse survivors to sue
The Catholic Church has failed in its appeal over a compensation payout to a sexual abuse survivor, and now faces the prospect of being sued by hundreds of other victims who received meagre payments in exchange for their silence.

A former altar boy known as WCB was in 1996 paid $32,500 by the church after he was repeatedly abused by Warragul priest Daniel Hourigan between 1977 and 1980.
WCB’s lawyers say he felt insulted by that payment given the horrific abuse he suffered from when he was 12 and the effect it had on his life.

The Supreme Court this year overturned the deed of release, which allowed the Gippsland man to sue the church for damages.
The church appealed against that decision but the Court of Appeal on Friday dismissed the challenge and found in WCB’s favour. Appeals judges David Beach, Stephen Kaye and Robert Osborn found the 1996 payment was a “very modest one” and not commensurate “for the wrong done to [WCB]”.

“In those circumstances, and notwithstanding the difficulties created by the elapse of time, it is, in our view, very plainly just and reasonable to set aside the deed,” the appeals judges wrote.

“Indeed, it would positively be unjust and unreasonable not to do so.”
The Court of Appeal’s ruling means WCB can now sue the church for compensation. His lawyers hope the case goes to trial in the first half of next year.

The ruling is also expected to encourage other abuse victims who received capped compensation payments in the 1990s – such as under the church’s Melbourne Response scheme – to sue the church.

WCB’s lawyer, Laird Macdonald, said his firm Rightside Legal estimated there were hundreds of abuse victims who could now consider putting aside past payments and sue the church for adequate compensation.

“It is a watershed moment for them because, like my client, so many of them have been locked out of getting fair compensation because of the miserable amounts that were doled out by the church in the ’90s,” he said.

“This decision should stand as an example to abuse survivors that the the days of the church having legal supremacy and just dominating abuse survivors is just over.”

Mr Macdonald said WCB was “massively relieved” given his past disappointments when dealing with the church. The church had previously denied WCB was abused even though Hourigan admitted doing so before he died. The church had never apologised to WCB.

“He has dealt with the church for decades and more often that not he got the rough end of the stick,” Mr Macdonald said.

Hourigan was facing criminal charges related to offending against several children when he died in 1995.

Last year the Victorian government passed a law allowing courts to set aside a past deed of release or court judgment relating to child abuse.

Mr Macdonald said the courts’ recent rulings upheld the spirit of the law changes, which were aimed at “giving this community of survivors a fair go at compensation”.

In a statement, the Diocese of Sale said it would consider the court’s findings. The church would have to go to the High Court to lodge another appeal.

The diocese’s Bishop Gregory Bennet said he acknowledged “the enduring trauma experienced by victims of child abuse through the Catholic Church over many years”.
“The Catholic Church in Australia, and specifically here in the Sale Diocese, has been working assiduously to ensure that our schools and parishes are safe places, where children and vulnerable people are protected and encouraged to flourish,” he said.

“On behalf of the Diocese of Sale and all clergy and staff working here, I offer our support, prayers and absolute commitment to work together for the best outcomes for the survivors of abuse.”
♦ www.theage.com.au

Jesuit settlements as well?
For example in the late 1990's, a former Xavier College student asking for sex abuse compensation was told that if he signed for (about) $30,000 his abuser in the next room would apologise to him as well.

If he didn't sign they would ruin him financially with the legal processses and wished him luck trying to find a body to sue.
He signed away his rights and the Society of Jesus covered up a crime and protected the criminal.
There are many similar settlements.

The Principal is bound by NSW Mandatory Reporting requirements.
The members of the Board might also be bound by NSW Mandatory Reporting requirements.
The Principal reports to the Board, they report to Jesuit Education Australia Ltd. and then they report to the Jesuit provincial as Chairperson of the Society of Jesus in Victoria Ltd.
Australian Charities and Not-for-profits Commission Act 2012 says charities must manage their affairs openly, accountably and transparently [45-5, (a) ]

The various Victorian Acts and authorities involved with Child Sex Abuse (CSA) include:
The Commission for Children and Young People (CCYP)
The Crimes Act 1958
The Wrongs Act 1958
Children and Young Persons Act 1989/1993 renamed: Children Youth and Families Act 2005

Things to note:
Mandatory Reporting (Victoria) for school teachers and principals was introduced in 1994.
Prior to 1991 there were no specific child abuse offences, so hostorical charges are usually for Indecent Assault, a crime which applies to all persons.

Take the case of "John" who reported sex abuse by Jesuit priest Philip Wallbrige s.j. at St. Aloysius College, Sydney, to Simon Davies (Jesuit's Director of Professional Standards). There is evidence Wallbridge did the same at Xavier as well. Simon's response was "nothing we can do".
Philip Wallbridge is now deceased (Dec. 2019) and he left the priesthood sometime after the offences.
This entirely unsatisfactory response from Simon Davies undelines the need for independant oversight of complaints handling.

Now let's say "John" makes a police report and they say its not enough to begin an investigation, the net result is the perpetrator is as free as a bird and gets away with it.
Mandatory Reporting is pretty confusing so I have tried to put the bits together here....
So it seems the continuing cover up of sex abuse by the Jesuits can continue and so much important information is kept secret.
♦ More about Mandatory Reporting and Failure to Report....

NSW Mandatory Reporters         ♦ www.facs.nsw.gov.au
Mandatory reporters are people who deliver the following services , wholly or partly, to children as part of their professional work or other paid employment, and those in management positions in these services:

Health care — registered medical practitioners, specialists, enrolled and registered nurses, registered midwives, occupational therapists, speech pathologists, psychologists, dentists and other allied health professionals working in sole practice or in public or private health practices.
Welfare — registered psychologists, social workers, caseworkers and youth workers.
Education — teachers, counsellors, principals,
Children’s services — child care workers, family day carers and home-based carers.
Residential services — refuge workers, community housing providers.
Law enforcement — police.
Disability services – disability support workers and personal care workers.

On 1 March 2020, mandatory reporter groups in NSW expanded to also include:

A person in religious ministry or a person providing religion based activities to children (e.g. minister of religion, priest, deacon, pastor, rabbi, Salvation Army officer, church elder, religious brother or sister)
Registered psychologists providing a professional service as a psychologist to adults.

Note: "those in management positions" you would think would include the members of a school board.


Summary, at a general level, the child protection reporting requirements of each Australian state and territory.
There are many ways people may become aware of abuse, but the table focuses on self-reporting by the victim.

10 August 2017
♦ www.schoolgovernance.net.au

Schools should also note that there may be obligations to report current/former teacher misconduct to the
state/territory-specific teacher registration board. Legal advice should always be obtained in any case.

NSW
If the victim reporting the historical abuse is a child, schools will need to report to Family and Community Services NSW,
as well as report to the NSW Ombudsman regarding any reportable conduct allegation
(refer to our previous School Governance article for more information on reportable conduct).
If an adult comes forward claiming historical abuse, schools should report the matter to the Police.

Failure to Report Offence
All adults in NSW are required to report information to the police if they know,
believe or reasonably ought to know that a child (under 18 years) has been abused.

A person will not be guilty of the offence if he or she has a reasonable excusefor not reporting the information to the police*.
Examples of reasonable excuse include:

If the offence has already been reported under mandatory reporting obligations,
such as to the Child Protection Helpline or to the Office of the Children’s Guardian
under the Reportable Conduct Scheme, or the persons believes on reasonable
grounds that another person reported

If the person believes on reasonable
grounds that the information is alreadyknow to police

If the victim is now an adult and doesn’t want the offence reported

If the person fears for their safety or another person’s safety if they report

If the informationwas obtained by the personwhenthey were under the age of 18 year


Victoria
If a former student is now an adult and reports a claim of historical abuse, the school must notify the Police.

If the former student is still a child, a mandatory report to the Department of Health and Human Services and a
reportable conduct allegation to the Commission for Children and Young People must be made.
Reporting requirements under the Crimes Act may also apply.

WA
While there was no legal requirement to report child abuse prior to 1 January 2009,
it is a requirement of registration for non-government schools, and to follow mandatory reporting procedures prior to this date.

Hence if a former student (or representative of the former student) reports past abuse or grooming behaviour,
a report must be made to Child Protection and Family Service WA. Police should also be contacted when
an adult former student has made an allegation of historical child abuse.

Queensland
If a current student or a former student who is child, comes forward and makes a historical allegation of sexual abuse,
a mandatory report must be made to Child Safety Services Queensland. If an adult makes an allegation of historical abuse,
it should be reported to Police.

Tasmania
If an adult reports historical abuse, it should be reported to the Police.
If a child reports an allegation of abuse, a mandatory report must be lodged with Child Safety Services Tasmania
or with Gateway Services if there is no immediate risk of harm.

ACT
If a child discloses abuse, a mandatory report must be made to Child and Youth Protection Services and reportable conduct
allegations must be communicated to the ACT Ombudsman. If the child is in immediate danger, the Police must be contacted.
Schools should also notify the Australian Federal Police in respect of adults who make a claim of historical child abuse.

SA
If a former student, who is still a child, makes a claim for historical abuse against a school,
a mandatory notification to the Department for Child Protection SA must be made or reported through the Child Abuse Report Line (CARL)
(services provided by the Department of Child Protection SA).
If an adult makes a historical abuse claim, schools will need to contact Police.

NT
If a child makes a claim then schools should contact NT Department of Children and Families or Police and make a mandatory report.
If an adult makes a claim, schools should report to Police.

Royal Commission Recommendations
Many survivors of historical abuse are adults who have come forward after abuse which occurred many years ago.
The Royal Commission has noted that complaints can date back decades, and the accused may have long ago left the institution or passed away,
but those still living may still have contact with children.
The Royal Commission recommends that the procedures for dealing with historical complaints need to focus on what can be done to assist the complainant.
The Royal Commission recommends that when dealing with historical complaints institutions must:

acknowledge the abuse suffered;
issue an apology;
provide assurance that current policies will keep children in the institution safe and the abuse will not be repeated; and
support the complainant, such as paying for counselling costs or providing other financial assistance.

How to respond to a historical abuse complaint

If a school receives a historical abuse complaint they need to make sure they document everything, such as the name of the victim,
who the alleged perpetrator was/is, date and time they received the complaint.
If they meet the victim in person, they must document all the details about the meeting including time and date of the meeting,
what the complaint is about, who is the alleged perpetrator, what was said during the meeting and who was present.

It is critical that, as soon as they receive the complaint, the management of the school should seek legal advice.
If the complaint has been made by a victim who is now an adult, school management should contact the Police.
If a complaint was previously made, and the matter has been previously dealt with by the authorities and the courts,
legal advice should be sought to determine next steps, as the victim may be claiming monetary compensation.

♦ www.cpsltd.org.au
in their Standard 6, CPSL says:
6.3.2 "..while the complaint is investigated.."
6.3.3 "..are effectively investigated and managed,.."
Those are the only two instances of the word "investigate".

There is nothing that says a complaint SHOULD be investigated,
or HOW it should be investigated.



Royal Commission
Recommendation 7.7

Consistent with Child Safe Standard 6: Processes to respond to complaints of child sexual abuse are child focused,
institutions should have a clear, accessible and child- focused complaint handling policy
and procedure that sets out how the institution should respond to complaints of child sexual abuse.

The complaint handling policy and procedure should cover:
a) making a complaint
b) responding to a complaint
c) investigating a complaint
d) providing support and assistance; and
e) achieving systemic improvements followinga complaint.

CRA Response to the Recommendation - Accepted.

Each diocese and religious institute will then be responsible for implementing and complying with the CPSL standards.


Standard 6:

Recommendation #11

Effective complaints managementProcesses for raising concerns and complaints are responsive, understood, accessible and
used by children, families, carers, communities and personnel

Criterion 6.1
The entity has an effective Complaints Handling Policy and procedures which clearly outline the roles and responsibilities,
approaches to dealing with different types of complaints, reporting obligations and record keeping requirements.

Indicators
6.1.1
The entity’s policies, procedures and practices ensure that all mandatory reporting obligations are met.

6.1.2
There are clear procedures that provide step-by-step guidance on what action to take for different types of complaints,
including breaches of Codes of Conduct, disclosures, allegations or concerns of abuse of a child, be they historic or current.

6.1.3
There are clear procedures for identifying and mitigating actual and perceived conflicts of interest in complaint management.

6.1.4
The entity works in cooperation with relevant organisations and seeks specialist advice from the statutory child protection services when necessary.

6.1.5
Key roles and responsibilities in relation to handling complaints are articulated within the Complaints Handling Policy and procedures.

6.1.6
The Complaints Handling Policy and procedures differentiate, where appropriate, between a child victim and an adult bringing forward a complaint of
abuse suffered as a child.

6.1.7
A process is in place to record all child abuse complaints, incidents, allegations, disclosures, concerns and referrals.
The system must be secure so that confidential information is stored, protected and retained for 50 years [referto Indicator 1.6.2]


Criterion 6.2
The entity has a child-focused complaints handling system that is understood by children, families, carers and personnel.Indicators

6.2.1
The complaints handling system prioritises the safety and well-being of children.

6.2.2
The Complaints Handling Policy and procedures are made publicly available in a variety of formats, including age and developmentally appropriate for children,
enabling complaints processes to be easily understood.

Criterion 6.3
Complaints are taken seriously, and responded to promptly and thoroughly.Indicators

6.3.1
The Complaints Handling Policy requires that, upon receiving a complaint of child abuse, an initial risk assessment is conducted to
identify and minimise any risk to children. Ongoing risk assessments are conducted throughout all investigation processes.

6.3.2
The Complaints Handling Policy requires that at the completion of the initial risk assessment, where a complaint of child sexual abuse is plausible,
and there is a risk that the person may come into contact with children, the person be stood down from their role and/or ministry while the complaint is investigated.

6.3.3
The Complaints Handling Policy is aligned, and operates in conjunction, with the entity’s documented disciplinary and grievance policies and processes,
in such a way that at the completion of the initial risk assessment, a breach or breaches of the Code of Conduct [refer to Criterion 1.4]
in relation to inappropriate behaviour towards a child are effectively investigated and managed, and include provisions for personnel to be redeployed,
stood down and/or dismissed [having due regard for Indicator 6.5.1].

6.3.4
Complainants are responded to promptly and kept informed as to the progress of dealing with their complaint.

6.3.5
Support and care are provided to a child who has experienced or is alleging abuse, and other affected parties.

6.3.6
Appropriate confidentiality is maintained with due regard for the Australian Privacy Principles and relevant legislation in relation
to information sharing in the context of child safeguarding [refer to Indicator 1.6.2].

6.3.7
There are documented policies and processes implemented that empower and support personnel to raise, in good faith,
concerns and allegations about unacceptable behaviour towards children by other personnel.

6.3.8
Where a complaint related to child sexual abuse against a seminarian, clergyor religious is substantiated on the balance of probabilities,
with due respect to the rights of individuals, the Church Authority should remove that individual from ministry.

6.3.9
Where a seminarian, clergy or religious is convicted of an offence relating to child sexual abuse, that individual should be permanently removed from ministry.
The Church Authority must take practicable steps to prohibit that individual from holding themselves out as being
a person with religious authority and should present a case to the relevant dicastery for dismissal from the clerical state and/or dispensation from vows

Criterion 6.4
The entity has policies and procedures in place that address reporting of concerns and complaints to relevant authorities,
whether or not the law requires reporting, and co-operates with law enforcement.Indicator

6.4.1
The Complaints Handling Policy requires that: • concerns and complaints of child abuse occurring within the entity be
reported to the appropriate statutory authority/ies, regardless of whether the reporting is mandated; and •
personnel cooperate with law enforcement procedures and directives.•

Criterion 6.5
Reporting, privacy and employment law obligations are met.

Indicator 6.5.1
The Complaints Handling Policy requires that all relevant reporting, privacy and employment law obligations are met.Criterion

6.6
The Church Authority ensures mechanisms are in place to care for adult complainants.Indicators

6.6.1
The entity offers appropriate pastoral care to adult complainants, which recognises their unique needs.
This includes an offer from the Church Authority to meet the complainant in person.

6.6.2
The Church Authority facilitates adult complaints’ access to appropriately trained personnel whose clearly defined roles
are to listen to and represent the pastoral needs of the complainant.
This is done in consultation with the complainant.Criterion

6.7
The Church Authority ensures mechanisms are in place to monitor and support respondents facing allegations.Indicators

6.7.1
The Church Authority has access to appropriately trained personnel - lay, religious or clergy -
whose clearly defined roles are to listen to and represent the pastoral needs of the respondent.
This is done in consultation with the respondent.

6.7.2
The Church Authority has suitable arrangements in place for the monitoring and support of a respondent,
where there is a plausible complaint, until (and if) the Church Authority no longer has responsibility for monitoring the respondent.

♦ ccyp.vic.gov.au


Child Safe Standard 5: Processes for responding to and reporting suspected child abuse

Organisations have a responsibility to promote and provide an environment in which children, staff and volunteers are encouraged to speak up when they are uncomfortable or concerned.

This includes:

recognising that the safety of children is everyone’s responsibility
having a clear procedure for reporting concerns and allegations
encouraging children to report if they feel unsafe or concerned
making people within the organisation aware of their duty of care and legal responsibilities
appropriately acting on concerns and complaints
keeping and securely storing accurate records.


Responding

Children who disclose that they are feeling unsafe or being abused must be heard, must be taken seriously and must be treated with sensitivity and compassion.

They and their families and carers should be connected with services that can support them to manage a difficult or traumatic experience.

An organisation’s response to reports of suspected abuse should be the same no matter how the organisation feels about the child’s disclosure or the person or persons implicated in their disclosure.
Reporting

Simple, transparent, well-communicated processes will significantly increase the likelihood of people acting if they have a concern or believe a child is being harmed.

An organisation’s reporting process must also be known by children and provided in an age- appropriate form.

A clear reporting process includes:

what types of behaviour or concerns that need to be reported
who within an organisation should be notified of a child safety concern
what an organisation’s internal investigation process will involve, and how it will keep records.

The reporting process should also require people to:

report suspected criminal child abuse to the police or child protection as soon as possible
call triple zero (000) if a child is in immediate danger.

(this Amendment is not retrospective)
Wrongs Amendment (Organisational Child Abuse) Act 2017,
Posted on July 7, 2017

In recent days the Victorian government passed an Australian-first piece of legislation that signals a huge reform in how child abuse cases are to be prosecuted.

Entitled the Wrongs Amendment (Organisational Child Abuse) Act 2017, it has the effect of reversing the onus of proof onto organisations accused of failing to prevent child abuse.

This means that if you are a victim of abuse in Victoria seeking to sue organisations that employed the abusers, you no longer need to prove that the organisation failed to take any precautions in preventing the abuse.

Rather, the burden is now on the accused organisation to prove measures were taken to prevent it. ‘Organisations’ includes churches, community groups as well as teachers and government authorities that look after children.

In effect, this law greatly contributes to levelling the legal playing field that ordinarily saw individual victims heavily disadvantaged against larger, more powerful organisations.

A key lesson to take away from the two recent Royal Commissions concerning child abuse is that it is too simple for institutions to deny liability by denying knowledge and forcing the abused to establish knowledge of the abuse or the abuser’s past behaviour that ought to have sent red flags to the organisation.

It has also become painfully apparent that many institutions sought to protect their own reputation or that of their membership by concealing the abuser’s behaviour and protecting the abuser whilst simultaneously alienating and ostracising the abused. This loaded the pain and suffering of those survivors of abuse.

It has been notoriously difficult for victims to prove that institutions have broken the duty of care they owed them, if those institutions accept that they owed a duty in the first place.

This has lead to many victims settling their proceedings with inadequate and meagre settlements. For the community and particularly for the victims and their families, this new law helps to remedy this clearly unjust state of affairs.

In the future, we hope that other States and Territories also take note of the lessons from the these Royal Commissions and the example that Victoria has set with its new legislation.

The buck must stop with the men and women who have the power to prevent threats to child safety.

No. 12 of 2017

TABLE OF PROVISIONS

Section Page
1 Purposes 1
2 Commencement 2
3 New Part XIII inserted 2
4 Amendment of Victoria Police Act 2013 8
5 Repeal of amending Act 9
...............
Endnotes 10
1 General information 10


Wrongs Amendment (Organisational Child Abuse) Act 2017†

No. 12 of 2017

[Assented to 27 March 2017]

The Parliament of Victoria enacts:

1 Purposes

The purposes of this Act are—

(a) to amend the Wrongs Act 1958 to impose
a duty of care that forms part of a cause
of action in negligence on organisations
exercising care, supervision or authority
over children to prevent the physical abuse
or sexual abuse of those children committed
by individuals associated with those
organisations; and Victoria

(b) to make consequential amendments to the
Victoria Police Act 2013.

2 Commencement

(1) Subject to subsection (2), this Act comes into
operation on a day to be proclaimed.

(2) If this Act does not come into operation before
1 July 2017, it comes into operation on that day.

3 New Part XIII inserted

After Part XII of the Wrongs Act 1958 insert—

"Part XIII—Organisational liability for child abuse

88 Definitions
In this Part—
abuse means physical abuse or sexual abuse;

authority, in relation to a relevant
organisation, includes any
authority or ostensible authority
that an individual associated with
the relevant organisation derives
from the individual's association
with the relevant organisation;

child means a person who is under the age
of 18 years;

delegation includes sub-delegation;

individual associated with a relevant
organisation has the meaning given
in section 90;

permanent care order has the same meaning
as in the Children, Youth and
Families Act 2005;

physical abuse does not include an act or
omission committed in circumstances
that constitute—

(a) a lawful justification or excuse to
the tort of battery; or

(b) any other lawful exercise of force;

relevant organisation means an entity
(other than the State) organised for
some end, purpose or work that
exercises care, supervision or authority
over children, whether as part of its
primary functions or activities or
otherwise, and is—

(a) capable in law of being sued; or

(b) not capable in law of being sued
but nominates an associated legal
person under section 92; or

(c) the holder of a statutory office
within the meaning of the Public
Administration Act 2004; or

(d) a Department or Administrative
Office within the meaning of the
Public Administration Act 2004;
or

(e) a body corporate established for
public purposes; or

(f) Victoria Police;

sexual abuse means sexual assault or other
sexual misconduct;

specified carer means—
(a) a foster carer of a child; or

(b) an individual who is a family
member of, or other person of
significance to, a child with whom
the child is currently placed in out
of home care under the Children,
Youth and Families Act 2005.

89 Application of Part

(1) Part X applies to a claim brought in reliance
on the duty in section 91.

(2) Part XII does not apply to a claim brought in
reliance on the duty in section 91.

(3) This Part is subject to section 5.4.10 of the
Education and Training Reform Act 2006.

90 When is an individual associated with a
relevant organisation?

(1) An individual associated with a relevant
organisation—

(a) includes but is not limited to an
individual who is an officer, office
holder, employee, owner, volunteer or
contractor of the relevant organisation;
and

(b) if the relevant organisation is a
religious organisation, includes but is
not limited to a minister of religion, a
religious leader, an officer or a member
of the personnel of the religious
organisation; and

(c) if the relevant organisation has
delegated, by means of contract or
otherwise, the care, supervision or
authority over the child to whom the
claim relates to any organisation,
includes but is not limited to an
individual who is referred to in
paragraph (a) or (b) in relation to the
delegator organisation or the delegate
organisation; and

(d) if the relevant organisation has
delegated, by means of contract or
otherwise, the care, supervision or
authority over the child to whom the
claim relates to a specified carer and a
permanent care order in respect of the
child has not been made, includes but
is not limited to—

(i) an individual who is referred to in
paragraph (a) or (b) in relation to
the relevant organisation; and

(ii) the specified carer.

(2) An individual is not associated with a
relevant organisation solely because the
relevant organisation wholly or partly funds
or regulates another organisation.

91 Liability of organisations

(1) This section imposes a duty of care that
forms part of a cause of action in negligence.

(2) 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.


Note

See section 90 as to when an individual is
associated with a relevant organisation. In particular,
section 90(1)(c) and (d) extend the meaning of that
concept in the case of delegation of the care,
supervision or authority over a child to—

(a) another organisation; or

(b) a specified carer.

(3) In a proceeding on a claim against a relevant
organisation for damages in respect of the
abuse of a child under its care, supervision or
authority, on proof that abuse has occurred
and that the abuse was committed by an
individual associated with the relevant
organisation, the relevant organisation is
presumed to have breached the duty of care
referred to in subsection (2) 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.

(4) If a claim names 2 or more relevant
organisations as defendants, subsection (3)
applies to each relevant organisation
separately.


(5) In the case of a relevant organisation that is a
public sector body within the meaning of the
Public Administration Act 2004 or another
person or body acting on behalf of the
State—

(a) if the relevant organisation is capable
in law of being sued, the relevant
organisation is the appropriate
defendant for the purposes of a claim
brought in reliance on the duty in
subsection (2); and

(b) if the relevant organisation is not
capable in law of being sued, the State
is the appropriate defendant for the
purposes of a claim brought in reliance
on the duty in subsection (2); and

(c) any liability incurred by the relevant
organisation by reason of subsection (2)
is incurred by the State.

(6) Subsection (2) does not apply to abuse
of a child committed by an individual
associated with a relevant organisation in
circumstances wholly unrelated to that
individual's association with the relevant
organisation.

(7) If a relevant organisation has delegated,
by means of contract or otherwise, the
care, supervision or authority over a child
to whom the claim relates to another
organisation, subsection (2) does not
apply to abuse of the child committed by
an individual associated with the delegate
organisation in circumstances wholly
unrelated to that individual's association
with the delegator organisation or the
delegate organisation.


92 Entity may nominate body to be sued

(1) If an entity is not capable in law of being
sued, it may nominate, with the consent of
the nominee, a legal person that is so capable
as the appropriate defendant for the purposes
of a claim brought in reliance on the duty in
section 91 and any liability incurred by the
entity by reason of section 91(2) is incurred
by the nominated legal person.

(2) A nomination under subsection (1) may be
made at any time, whether before or after
abuse occurs.

(3) If a nomination under subsection (1) is made
after abuse occurs—

(a) the nominating entity is taken to be a
relevant organisation at the time of the
abuse; and

(b) any liability incurred by the entity by
reason of section 91(2) is taken to have
been incurred by the nominated legal
person on and from the date of the
abuse.

93 Transitional

This Part applies to abuse of a child that
occurs on or after the day on which the
Wrongs Amendment (Organisational
Child Abuse) Act 2017 comes into
operation.".

4 Amendment of Victoria Police Act 2013

(1) In section 74(2) of the Victoria Police Act 2013,
for "The State" substitute "Subject to subsection
(5), the State".

(2) In section 74(4) of the Victoria Police Act 2013,
for "The State" substitute "Subject to subsection
(5), the State".


(3) After section 74(4) of the Victoria Police
Act 2013 insert—

"(5) Subsections (2) and (4) do not apply to a
claim brought in reliance on Part XIII of the
Wrongs Act 1958.".

(4) After section 81(2) of the Victoria Police
Act 2013 insert—

"(3) Nothing in this Division affects the operation
of Part XIII of the Wrongs Act 1958.".

5 Repeal of amending Act

This Act is repealed on 1 July 2018.

Note

The repeal of this Act does not affect the continuing operation
of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).

...............


† Minister's second reading speech—
Legislative Assembly: 23 November 2016
Legislative Council: 7 February 2017
The long title for the Bill for this Act was "A Bill for an Act to amend the
Wrongs Act 1958 to impose a duty of care that forms part of a cause of
action in negligence on organisations exercising care, supervision or
authority over children to prevent the physical abuse or sexual abuse of
those children committed by individuals associated with those
organisations, to make consequential amendments to the Victoria Police
Act 2013 and for other purposes."

Endnotes
1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.


Section 326 Concealing offences for benefit

(1) Where a person has committed a serious
indictable offence, any other person who,
knowing or believing that the offence, or some
other serious indictable offence, has been
committed and that he has information which
might be of material assistance in securing the
prosecution or conviction of an offender for it,
accepts any benefit for not disclosing that
information shall be guilty of a summary offence
and liable to level 8 imprisonment (1 year
maximum).

(2) Notwithstanding anything to the contrary in
subsection (1), it is no offence against this section
to fail to disclose the commission of any offence
against—

(a) Division 2 of Part I; or
(b) subdivision (1), (2) or (3) of Division 3 of
Part I—

if the only benefit accepted in return for failing to
disclose the commission of the offence is the
making good of any loss or injury caused by its
commission or the making of reasonable
compensation for any such loss or injury.

(3) For the purposes of this section a person shall be
deemed to accept a benefit if he accepts or agrees
to accept any benefit or advantage, or the promise
of any benefit or advantage, either to himself or to
another, whether or not the benefit or advantage is
in money or money's worth.

* * * * *
(5) The compounding of an offence other than treason
shall not be an offence otherwise than under this
section.

(6) In this section, serious indictable offence has the
same meaning as it has in section 325.

____________________________________________________

Inserted 2016
S. 49O
inserted by
No. 47/2016
s. 16.

49O Failure by a person in authority to protect a child from a sexual offence

(1) A person (A) commits an offence if—
(a) A occupies a position within, or in relation
to, a relevant organisation; and
(b) there is a substantial risk that a relevant child
will become the victim of a sexual offence
committed by another person who is—
(i) 18 years of age or more; and
(ii) a person associated with the relevant
organisation; and
(c) A knows that the risk exists; and
(d) A, by reason of A's position, has the power
or responsibility to reduce or remove that
risk; and
(e) A negligently fails to reduce or remove that
risk.

(2) A person who commits an offence against
subsection (1) is liable to level 6 imprisonment
(5 years maximum).

(3) For the purposes of subsection (1), a person
negligently fails to reduce or remove a risk if
that failure involves a great falling short of the
standard of care that a reasonable person would
exercise in the circumstances.

(4) For the avoidance of doubt, in a prosecution for an
offence against subsection (1), it is not necessary
to prove that a sexual offence has been committed.

(5) It is immaterial that some or all of the
circumstances constituting an offence against
subsection (1) occurred outside Victoria, so
long as the relevant child was in Victoria at any
time while the substantial risk referred to in
subsection (1)(b) existed.

(6) It is immaterial that both A and the relevant child
were outside Victoria at the time at which some or
all of the circumstances constituting an offence
against subsection (1) occurred, so long as the
sexual offence was at risk of occurring in Victoria.

(7) In this section—
person associated, in relation to a relevant
organisation, includes but is not limited
to a person who is an officer, employee,
manager, owner, volunteer, contractor or
agent of the organisation but does not
include a person only because the person
receives services from the organisation;
relevant child means a child (whether identifiable
or not) under the age of 16 years who is, or
may come, under the care, supervision or
authority of a relevant organisation;
relevant organisation means—
(a) an organisation that exercises care,
supervision or authority over children,
whether as its primary function or
otherwise, and includes but is not
limited to—

(i) a church; and
(ii) a religious body; and
(iii) a school; and
(iv) an education and care service
within the meaning of the
Education and Care Services
National Law (Victoria); and
(v) a children's service within the
meaning of the Children's
Services Act 1996; and
(vi) an out of home care service within
the meaning of the Children,
Youth and Families Act 2005;
and
(vii) a hospital; and
(viii) a government department; and
(ix) a government agency; and
(x) a municipal council; and
(xi) a public sector body; and
(xii) a sporting group; and
(xiii) a youth organisation; and
(xiv) a charity or benevolent
organisation; or
(b) an organisation that, in accordance
with an agreement or arrangement
with an organisation referred to in
paragraph (a), is required or permitted
to engage in activities associated with
the care, supervision or authority over
children exercised by the organisation
referred to in paragraph (a);
sexual offence means—
(a) an offence against a provision of
Subdivision (8A), this Subdivision
(other than this section), (8C), (8D),
(8E), (8F) or (8FA); or
(b) an attempt to commit an
offence covered by paragraph (a)
(other than section 49K); or
(c) an assault with intent to commit an
offence covered by paragraph (a).


__________________________________________

Crimes Act 1958 version 131, 01 July 1997

S. 49A
inserted by
No. 102/1994
s. 93.
Inserted 1994
49A. Facilitating sexual offences against children

(1) Subject to this section, a person who in Victoria
makes travel arrangements for another person or
does or omits to do any other act that aids,
facilitates or contributes to in any way whatever
the commission by another person of an offence
against this Subdivision (other than this section)
or against Division 2 of Part IIIA of the Crimes
Act 1914 of the Commonwealth or against a law
in force only in a place outside Victoria the
necessary elements of which consist of or include
elements which, if present or occurring in
Victoria, would constitute an offence against this
Subdivision (other than this section) is guilty of an
indictable offence and liable to level 2
imprisonment.
(2) For a person to be guilty of an offence against subsection
(1) the person—
(a) must make the travel arrangements or do or
omit to do the other act with a view to
personal gain or gain for another person; and
(b) must—
(i) intend that the conduct would aid,
facilitate or contribute to the
commission of an offence of the type
committed by the other person; or

S 48
substituted by
No. 8/1991
s. 3.
s. 48
S. 48(1)
amended by
No. 49/1991
s. 119(3)(Sch.
3 item 7).

Inserted 1991
48. Sexual penetration of 16 year old child
(1) A person must not take part in an act of sexual
penetration with a 16 or 17 year old child to whom
he or she is not married and who is under his or
her care, supervision or authority.
Penalty: Level 8 imprisonment.
(2) Consent is not a defence to a charge under subsection
(1) unless at the time of the alleged
offence the accused believed on reasonable
grounds—
(a) that the child was aged 18 or older; or
(b) that he or she was married to the child.
________________________________________-


S. 49
substituted by
No. 8/1991
s. 3.
S. 49(1)
amended by
No. 49/1991
s. 119(3)(Sch.
3 item 8).

Crimes Act 1958 version 131, 01 July 1997
Inserted 1991

49. Indecent act with 16 year old child
(1) A person must not wilfully commit, or wilfully be
in any way a party to the commission of, an
indecent act with or in the presence of a 16 year
old child to whom he or she is not married and
who is under his or her care, supervision or
authority.

Penalty: Level 8 imprisonment.
(2) Consent is not a defence to a charge under subsection
(1) unless at the time of the alleged
offence the accused believed on reasonable
grounds—
(a) that the child was aged 17 or older; or
(b) that he or she was married to the child.

_________________________________________

(8A) Rape and Indecent Assault 7, 8

Inserted 1991
Crimes Act 1958 version 131, 01 July 1997
38. Rape
(1) A person must not commit rape.
Penalty: Imprisonment for 25 years.
(2) A person commits rape if—
(a) he or she intentionally sexually penetrates
another person without that person's consent
while being aware that the person is not
consenting or might not be consenting; or
(b) after sexual penetration he or she does not
withdraw from a person who is not
consenting on becoming aware that the
person is not consenting or might not be
consenting.

Inserted 1991
39. Indecent assault

(1) A person must not commit indecent assault.
Penalty: Level 5 imprisonment. (level 5 imprisonment (10 years maximum).)
(2) A person commits indecent assault if he or she
assaults another person in indecent circumstances
while being aware that the person is not
consenting or might not be consenting.


Inserted 1991

60. Soliciting acts of sexual penetration or indecent acts

(1) A person must not solicit or otherwise actively
encourage a child under the age of 18 to whom he
or she is not married and who is under his or her
care, supervision or authority to take part in an act
of sexual penetration or an indecent act with him
or her or another person or generally.
Penalty: Level 10 imprisonment or level 11 fine.


Crimes Act 1958 version 131, 01 July 1997

Inserted 1991
(Incorporated into 49S Facilitating a sexual offence against a child (2016) )

Section 54. Occupier etc. permitting unlawful sexual penetration
The owner or occupier of, or a person managing or
assisting in the management of, any premises must
not induce or knowingly allow a child under the
age of 17 to enter or remain on the premises for
the purpose of taking part in an unlawful act of
sexual penetration.
Penalty: (a) Level 5 imprisonment if the child
is under the age of 13;
(b) Level 7 imprisonment if the child
is aged between 13 and 17.



Section 53. Administration of drugs etc.
A person must not—
(a) administer a drug, matter or thing to a
person; or(b) cause a drug, matter or thing to be taken by a
person—
with the intention of rendering that person
incapable of resistance and thereby enabling
himself or herself or another person to take part in
an act of sexual penetration with that person.
Penalty: Level 5 imprisonment.


_______ 2014 - 2016 ______________________________________________

New s. 327
inserted by
No. 36/2014
s. 4.

S. 327(1) def.
of sexual
offence
substituted by
No. 5/2018
s. 6.

327 Failure to disclose sexual offence committed against child under the age of 16 years

Inserted 2014

New s. 327
inserted by
No. 36/2014
s. 4.

S. 327(1) def.
of sexual
offence
substituted by
No. 5/2018
s. 6.


(1) In this section—
interests includes reputation, legal liability and
financial status;
organisation includes a body corporate or an
unincorporated body or association, whether
the body or association—
(a) is based in or outside Australia; or
(b) is part of a larger organisation;
sexual offence means—
(a) an offence committed under
Subdivision (8A), (8B), (8C), (8E),
(8F) or (8FA) of Division 1 of Part I
on or after 1 July 2017; or
(b) an offence committed under
Subdivision (8D) of Division 1 of Part I
on or after 1 July 2017 other than
an offence that only relates to child
abuse material of a kind described in
paragraph (a)(i)(A) of the definition of
child abuse material in section 51A(1),
where the torture, cruelty or abuse is
not sexual; or
Example
An offence committed under Subdivision (8D)
of Division 1 of Part I that relates to child abuse
material that depicts or describes a child as a
victim of sexual abuse.
(c) an offence committed before 1 July
2017 under Subdivision (8A), (8B),
(8C), (8D), (8E) or (8EAA) as then
in force; or
(d) an attempt to commit an offence
referred to in paragraph (a), (b) or (c);
or
(e) an assault with intent to commit an
offence referred to in paragraph (a), (b)
or (c).
(2) Subject to subsections (5) and (7), a person of or
over the age of 18 years (whether in Victoria or
elsewhere) who has information that leads the
person to form a reasonable belief that a sexual
offence has been committed in Victoria against a
child under the age of 16 years by another person
of or over the age of 18 years must disclose that
information to a police officer as soon as it is
practicable to do so, unless the person has a
reasonable excuse for not doing so.
Penalty: 3 years imprisonment.

(3) For the purposes of subsection (2) and without
limiting that subsection, a person has a reasonable
excuse for failing to comply with that subsection
if—
(a) the person fears on reasonable grounds for
the safety of any person (other than the
person reasonably believed to have
committed, or to have been involved in, the
sexual offence) were the person to disclose
the information to police (irrespective of
whether the fear arises because of the fact of
disclosure or the information disclosed) and
the failure to disclose the information to
police is a reasonable response in the
circumstances; or
(b) the person believes on reasonable grounds
that the information has already been
disclosed to police by another person and the
firstmentioned person has no further
information.
Example
A person may believe on reasonable grounds that the
information has already been disclosed to police by
another person if the person has made a report
disclosing all of the information in his or her
possession in compliance with mandatory reporting
obligations under the Children, Youth and Families
Act 2005.
(4) For the purposes of subsection (2) and without
limiting that subsection, a person does not have a
reasonable excuse for failing to comply with that
subsection only because the person is concerned
for the perceived interests of—
(a) the person reasonably believed to have
committed, or to have been involved in, the
sexual offence; or
(b) any organisation.
(5) A person does not contravene subsection (2) if—
(a) the information forming the basis of the
person's belief that a sexual offence has been
committed came from the victim of the
alleged offence, whether directly or
indirectly; and
(b) the victim was of or over the age of 16 years
at the time of providing that information to
any person; and
(c) the victim requested that the information not
be disclosed.
(6) Subsection (5) does not apply if—
(a) at the time of providing the information, the
victim of the alleged sexual offence—
(i) has an intellectual disability (within the
meaning of the Disability Act 2006);
and
(ii) does not have the capacity to make an
informed decision about whether or not
the information should be disclosed;
and
(b) the person to whom the information is
provided is aware, or ought reasonably to
have been aware, of those facts.
(7) A person does not contravene subsection (2) if—
(a) the person comes into possession of the
information referred to in subsection (2)
when a child; or
(b) the information referred to in subsection (2)
would be privileged under Part 3.10 of
Chapter 3 of the Evidence Act 2008; or
(c) the information referred to in subsection (2)
is a confidential communication within the
meaning of section 32B of the Evidence
(Miscellaneous Provisions) Act 1958; or
(d) the person comes into possession of the
information referred to in subsection (2)
solely through the public domain or forms
the belief referred to in subsection (2) solely
from information in the public domain; or
(e) the person is a police officer acting in the
course of his or her duty in respect of the
victim of the alleged sexual offence; or
(f) the victim of the alleged sexual offence has
attained the age of 16 years before the
commencement of section 4 of the Crimes
Amendment (Protection of Children)
Act 2014.
(8) A prosecution for an offence under subsection (2)
must not be commenced without the consent of
the Director of Public Prosecutions.
(9) In determining whether to consent to a
prosecution for an offence under subsection (2),
the Director of Public Prosecutions must consider
whether the alleged offender has been subjected
to family violence (within the meaning of the
Family Violence Protection Act 2008) that is
relevant to the circumstances in which the offence
is alleged to have been committed.
328 Protection of those who disclose under section 327
A disclosure made under section 327(2) in good
faith—
(a) does not for any purpose constitute
unprofessional conduct or a breach of
professional ethics on the part of the person
by whom it is made; and
(b) does not make the person by whom it is
made subject to any liability in respect of it;
and
(c) without limiting paragraphs (a) and (b), does
not constitute a contravention of—
(i) section 141 of the Health Services
Act 1988; or
(ii) section 346 of the Mental Health
Act 2014.

_____________________________________________________

Crimes Act 1958. (2018) (Victoria)

Part II—Offenders
Division 1 — Abettors, accessories and concealers of offences

Pt 2 Div. 1
(Heading)
substituted by
No. 9576
s. 4(1).

Pt 2 Div. 1
Subdiv. (1)
(Heading and
s. 323)
substituted by
No. 9576
s. 4(1),
amended by
No. 68/2009
s. 97(Sch.
item 40.20),
substituted by
No. 63/2014
s. 6.
S. 323
substituted by
No. 63/2014
s. 6.


Complicity in commission of offences

323 Interpretation

(1) For the purposes of this Subdivision, a person is
involved in the commission of an offence if the
person—
(a) intentionally assists, encourages or directs
the commission of the offence; or
(b) intentionally assists, encourages or directs
the commission of another offence where the
person was aware that it was probable that
the offence charged would be committed in
the course of carrying out the other offence;
or
(c) enters into an agreement, arrangement or
understanding with another person to commit
the offence; or
(d) enters into an agreement, arrangement or
understanding with another person to commit
another offence where the person was aware
that it was probable that the offence charged
would be committed in the course of
carrying out the other offence.

(2) In determining whether a person has encouraged
the commission of an offence, it is irrelevant
whether or not the person who committed the
offence in fact was encouraged to commit the
offence.
Note
A person who committed an offence may include 2 or more
persons who entered into an agreement, arrangement or
understanding to commit the offence.

(3) A person may be involved in the commission of
an offence, by act or omission—
(a) even if the person is not physically present
when the offence, or an element of the
offence, is committed; and
(b) whether or not the person realises that the
facts constitute an offence.

324 Person involved in commission of offence taken to have committed the offence

New s. 324
inserted by
No. 63/2014
s. 6.

(1) Subject to subsection (3), if an offence (whether
indictable or summary) is committed, a person
who is involved in the commission of the offence
is taken to have committed the offence and is
liable to the maximum penalty for that offence.
(2) Despite subsection (1), a person is not taken to
have committed an offence if the person
withdraws from the offence.
Note
The common law recognises that in certain circumstances a
person may withdraw from an offence in which the person
would otherwise be complicit: for example, White v Ridley
[1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and
Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward
[1980] VicRp 24; [1980] VR 194.

(3) Nothing in this section imposes liability on a
person for an offence that, as a matter of policy, is
intended to benefit or protect that person.

324A Other offenders need not be prosecuted or found
guilty
S. 324A
inserted by
No. 63/2014
s. 6.

A person who is involved in the commission of an
offence may be found guilty of the offence
whether or not any other person is prosecuted for
or found guilty of the offence.

324B Offender's role need not be determined
S. 324B
inserted by
No. 63/2014
s. 6.

A person may be found guilty of an offence by
virtue of section 324 if the trier of fact is satisfied
that the person is guilty either as the person who
committed the offence or as a person involved in
the commission of the offence but is unable to
determine which applies.

324C Abolition of certain aspects of complicity at common
law
S. 324C
inserted by
No. 63/2014
s. 6.

(1) The law of complicity at common law in relation
to aiding, abetting, counselling or procuring the
commission of an offence is abolished.
(2) The doctrines at common law of acting in concert,
joint criminal enterprise and common purpose
(including extended common purpose) are
abolished.
Note
The common law concerning the circumstances in which a person
may withdraw from an offence in which the person would
otherwise be complicit is not abolished by this section.


325 Accessories
(1) Where a person (in this section called the
principal offender) has committed a serious
indictable offence (in this section called the
principal offence), any other person who,
knowing or believing the principal offender to be
guilty of the principal offence or some other
serious indictable offence, without lawful
authority or reasonable excuse does any act with
the purpose of impeding the apprehension,
prosecution, conviction or punishment of the
principal offender shall be guilty of an indictable
offence.

(2) If, on the trial of any person for a serious
indictable offence, the jury are satisfied that the
offence charged (or some other serious indictable
offence of which the accused might on that charge
be found guilty) was committed, but find the
accused not guilty of it, they may find him guilty
of any offence under subsection (1) of which they
offence charged (or that other offence).

(3) A person charged with an offence against
subsection (1) may be indicted and convicted
together with or before or after the principal
offender and whether or not the principal offender
is amenable to justice.

(4) A person convicted of an offence against
subsection (1) shall be liable—
(a) if the principal offence is one for which the
penalty is level 1 imprisonment (life) to
level 3 imprisonment (20 years maximum);
or
(b) in any other case, to imprisonment for a term
which is neither—
(i) more than 5 years in length; nor
(ii) more than one-half the length of the
longest term which may be imposed on
first conviction for the principal
offence.

S. 325(5)
repealed by
No. 9848
s. 18(1).

(6) In this section, serious indictable offence means
an indictable offence which, by virtue of any
enactment, is punishable on first conviction with
imprisonment for life or for a term of five years or
more.

CRIMES ACT 1958 - SECT 49M
Grooming for sexual conduct with a child under the age of 16
    (1)     A person (A) commits an offence if—
        (a)     A is 18 years of age or more; and
        (b)     A communicates, by words or conduct (whether or not a response is made to the communication), with—
              (i)     another person (B) who is a child under the age of 16 years; or
              (ii)     another person (C) under whose care, supervision or authority B is; and
        (c)     A intends that the communication facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more.
    (2)     A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
    (3)     A does not intend to facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more if, were the conduct constituting the sexual offence to occur, A or the other person would satisfy an exception, or have a defence, to that sexual offence.
    (4)     It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B or C was, or B and C were, in Victoria at the time at which that conduct occurred.



    (5)     It is immaterial that B or C was, or B and C were, outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A was in Victoria at the time that conduct occurred.
    (6)     It is immaterial that A, B and C were all outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A intended that the sexual offence would occur in Victoria.
    (7)     In this section—
"communication" includes an electronic communication within the meaning of the  Electronic Transactions (Victoria) Act   2000 ;
"sexual offence" means—
        (a)     an offence against a provision of Subdivision (8A), this Subdivision (other than section 49K(1) or this section), (8C), (8D), (8E), (8F) or (8FA); or
        (b)     an attempt to commit an offence covered by paragraph (a); or
        (c)     an assault with intent to commit an offence referred to in paragraph (a).
S. 49N inserted by No. 47/2016 s. 16.


PART 6.1—OFFENCES RELATING TO THE PROTECTION OF CHILDREN

Section 493. Offence to fail to protect child from harm

(1) A person who has a duty of care in respect of a
child—
(a) who intentionally takes action that has
resulted, or appears likely to result, in—
(i) the child suffering significant harm as a
result of—
(A) physical injury; or
(B) sexual abuse; or

(ii) the child suffering emotional or
psychological harm of such a kind that
the child's emotional or intellectual
development is, or is likely to be,
significantly damaged; or

(iii) the child's physical development or
health being significantly harmed; or

(b) who intentionally fails to take action that has
resulted, or appears likely to result, in the
child's physical development or health being
significantly harmed—
is guilty of an offence and liable to a penalty of
not more than 50 penalty units or to imprisonment
for a term of not more than 12 months.

(2) Proceedings for an offence under sub-section (1)
may only be brought by a person after
consultation with the Secretary.

(3) A person may be guilty of an offence under subsection
(1) even though the child was protected by
the action of another person from harm of the type
referred to in that sub-section.


************ Original 1989 *****************************
Children and Young Persons Act 1989 (Victoria)

Section 261. Offence to fail to protect child from harm

S. 261(2)
amended by
No. 46/1998
s. 7(Sch. 1).

(1) A person who has a duty of care in respect of a
child—
(a) who intentionally takes action that has
resulted, or appears likely to result, in—
(i) the child suffering significant harm as a
result of—

physical injury; or

(B) sexual abuse; or

(ii) the child suffering emotional or
psychological harm of such a kind that
the child's emotional or intellectual
development is, or is likely to be,
significantly damaged; or

(iii) the child's physical development or
health being significantly harmed; or

(b) who intentionally fails to take action that has
resulted, or appears likely to result, in the
child's physical development or health being
significantly harmed—

is guilty of an offence and liableto a penalty of
not more than 50 penalty units or to imprisonment
for a term of not more than 12 months.

(2) Proceedings for an offence under sub-section (1)
may only be brought by a person after
consultation with the Secretary.

(3) A person may be guilty of an offence under subsection
(1) even though the child was protected by
the action of another person from harm of the type
referred to in that sub-section.


In 2014, the law in Victoria was changed to create the failure to disclose offence.

The failure to disclose offence applies to you if:
- you are an adult, and
- you have information that leads you to form a ‘reasonable belief’ that another adult has sexually offended against a child under 16 in Victoria.

If this applies to you, you must report the information to police as soon as possible, unless:
you have a ‘reasonable excuse’ for not reporting the information, or
you are exempt from the offence.

If you fail to report the information, you may be charged with a criminal offence. The maximum penalty is three years imprisonment.
The failure to disclose offence helps to ensure that protecting children from sexual abuse is the responsibility of the whole community.


Reporting historical information about child sexual abuse
You must report information about child sexual abuse to police only if the alleged victim was still aged under 16 on 27 October 2014, when this offence came into effect.

As of 17 February 2020, if you are a religious minister who hears information in religious confession that leads you to form a reasonable belief of child sexual abuse, you must report that information to police.

Reasonable belief and child sexual abuse
You only need to report to police when you have seen or heard something that has led you to form a ‘reasonable belief’ that an adult has sexually abused a child.

You have a ‘reasonable belief’ if a reasonable person in the same circumstances as you would believe that an adult had sexually abused a child, for the same reasons you believed it. For example, you might form a reasonable belief that a child has been sexually abused if:
- the child tells you they have been sexually abused
- the child tells you they know someone who has been sexually abused (which may be a way of talking about themselves)
- someone who knows the child tells you the child has been sexually abused
- you observe signs of sexual abuse in the child
- you are a qualified professional who observes the child’s behaviour or development, which leads you to believe the child has been sexually abused.

You do not need to report rumours or unfounded suspicions.

Reasonable excuses for not reporting to police
You may have a ‘reasonable excuse’ for not reporting information about child sexual abuse to police if, for example:
- you fear for your safety, or the safety of another person, or
- you believe the information has already been reported to the police.

If you are charged with the failure to disclose offence, a court or jury may consider whether it was reasonable for you not to report to police in the circumstances.
You will not be guilty of an offence if you have a reasonable excuse for not reporting.

Reasonable excuse – Belief that the information has already been disclosed
You have an excuse for not reporting to police if:

you believe on reasonable grounds that another person has already disclosed the information to police, and
you have no further information to add.

♦ More.... www.justice.vic.gov.au         ♦ aifs.gov.au

************* Historical *************************************
Children Youth and Families Act 2005 (Victoria)

Section 184. Mandatory reporting
(no insertion notes)

(1) A mandatory reporter who, in the course of
practising his or her profession or carrying out the
duties of his or her office, position or employment
as set out in section 182, forms the belief on
reasonable grounds that a child is in need of
protection on a ground referred to in section
162(c) or 162(d) must report to the Secretary that
belief and the reasonable grounds for it as soon as
practicable—

after forming the belief; and

(b) after each occasion on which he or she
becomes aware of any further reasonable
grounds for the belief.

Penalty: 10 penalty units.

(2) It is a defence to a charge under sub-section (1)
for the person charged to prove that he or she
honestly and reasonably believed that all of the
reasonable grounds for his or her belief had been
the subject of a report to the Secretary made by
another person.

(3) The requirement imposed by sub-section (1)(b)
applies to a mandatory reporter referred to in
paragraph (f) to (l) of section 182(1) even if his or
her belief was first formed before the relevant date
under section 182(1) for that paragraph.

(4) For the purposes of this section, a belief is a belief
on reasonable grounds if a reasonable person
practising the profession or carrying out the duties
of the office, position or employment, as the case
requires, would have formed the belief on those
grounds.

********** Children and Young Persons (Further Amendment) Act 1993 ******************************************

Mandatory Reporting began with:

18 July 1994 – mandatory reporting duty commenced for teachers and school principals): (Section 64(1C)(d)

Children and Young Persons (Further Amendment) Act 1993
The purposes of this Act are— (a) to require the members of certain professional groups to report cases where they believe on reasonable grounds that a child is in need of protection because of physical injury or sexual abuse.

'(1A) A person referred to in any of the paragraphs of
sub-section (lc) to whom this sub-section applies
who, in the course of practising his or her
profession or carrying out the duties of his or her
office, position or employment as described in that
paragraph, forms the belief on reasonable grounds
that a child is in need of protection on a ground
referred to in paragraph (c) or (d) of section 63
must notify the Secretary of that belief and of the
reasonable grounds for it as soon as practicable—

(a) after forming the belief; and

(b) after each occasion on which he or she
becomes aware of any further reasonable
grounds for the belief.

Penalty applying to this sub-section: 10 penalty
units.

(1B) Grounds for a belief referred to in sub-section (1A)
are—

(a) matters of which a person has become aware;
and

(b) any opinions based on those matters.


Originally - CHILDREN AND YOUNG PERSONS ACT 1989

Section 184. Mandatory reporting

(1) A mandatory reporter who, in the course of
practising his or her profession or carrying out the
duties of his or her office, position or employment
as set out in section 182, forms the belief on
reasonable grounds that a child is in need of
protection on a ground referred to in section
162(c) or 162(d) must report to the Secretary that
belief and the reasonable grounds for it as soon as
practicable—

after forming the belief; and

(b) after each occasion on which he or she
becomes aware of any further reasonable
grounds for the belief.

Penalty: 10 penalty units.

(2) It is a defence to a charge under sub-section (1)
for the person charged to prove that he or she
honestly and reasonably believed that all of the
reasonable grounds for his or her belief had been
the subject of a report to the Secretary made by
another person.

(3) The requirement imposed by sub-section (1)(b)
applies to a mandatory reporter referred to in
paragraph (f) to (l) of section 182(1) even if his or
her belief was first formed before the relevant date
under section 182(1) for that paragraph.

(4) For the purposes of this section, a belief is a belief
on reasonable grounds if a reasonable person
practising the profession or carrying out the duties
of the office, position or employment, as the case
requires, would have formed the belief on those
grounds.
It all depends how hard you look
Before Ms. Warren's inquiry Fr. McCoy said all available files had been inspected and there was nothing to indicate Victor Higgs was moved because of a sex abuse complaint.
With a more thorough examination Ms. Warren found that Higgs was moved "partly" because of three sex abuse complaints to St. Ignatius, Norwood.

Section 254 of the Crimes Act 1958. Destruction of evidence
(1) A person who—

(a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and

(b) either—

(i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or

(ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and

(c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding—
is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both.

Notes
1 Document is defined in the Evidence Act 2008.

2 The maximum fine that may be imposed on a body corporate found guilty of an offence against this section is 3000 penalty units: see Sentencing Act 1991 s. 113D.

(2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future.


(1) For the purposes of a proceeding against a body corporate for an offence against section 254—

(a) relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and

(b) knowledge of an associate of the body corporate must also be attributed to the body corporate; and

(c) intention—

(i) of the body corporate’s board of directors; or

(ii) of an officer of the body corporate; or

(iii) of any other associate of the body corporate if a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the formation of that intention—

must also be attributed to the body corporate.

(2) If an officer of a body corporate contravenes section 254, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence.

(3) In a proceeding against a body corporate for an offence against section 254, brought in reliance on subsection (2), it is a defence to the charge for the body corporate to prove that it exercised due diligence to prevent the contravention of that section by the officer.

(4) The means by which authorisation or permission as required by section 254(1)(b)(ii) may be established include—

(a) proving that an officer of the body corporate gave that authorisation or permission; or

(b) proving that the body corporate’s board of directors gave that authorisation or permission; or

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the relevant conduct being carried out.

(5) Subsection (4)(a) does not apply if the body corporate proves that it exercised due diligence to prevent the authorisation or permission being given.

(6) Factors relevant to the application of subsection (1)(c)(iii) or (4)(c) include—

(a) whether authority to commit an offence against section 254 or an offence of a similar character had been given by an officer of the body corporate; and

(b) whether the associate of the body corporate who carried out the relevant conduct or formed the relevant intention believed on reasonable grounds, or entertained a reasonable expectation, that an officer of the body corporate would have authorised or permitted the relevant conduct being carried out with the relevant intention.

(7) Subject to subsection (8), it is not necessary that each element of an offence against section 254 that is attributed to a body corporate by force of subsection (1) be supplied by the same associate of the body corporate.

(8) It is necessary that the elements referred to in section 254(1)(b)(i) and (c) be supplied by the same associate of the body corporate.

Crimes Act 1958 (1970 version)

(3~W)hosoever unlawfully and indecently assaults any male person shall be guilty of a misdemeanour
and shall be liable to imprisonment for a term of not more than five years.(p.29)

(4) Any male person who in public or in private commits or is a party to the commission of
or procures or attempts to procure the commission by any male person of any act of gross indecency
with another male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than three years. (p.30)

( 4) Abettors in Misdemeanours.
333. Whosoever aids abets counsels or procures the commission of any misdemeanour whether the same
is a misdemeanour at common law or by virtue of any Act may be tried presented indicted informed against and punished as a principal offender.

( 5 ) Abettors in 0ffences punishable summarily.
334. Whosoever aids abets counsels or procures the commission of any offence which is by this Act
punishable on summary conviction either for every time of its commission or for the first
and second time only shall be liable for every first second or subsequent offence of aiding
abetting counselling or procuring to the same punishment as a principal offender. (p.107)

 

222 It would appear from Dr Murphy's voluntary work, and from the fact that 21 other instances
have been identified by the Society where complaints of sexual abuse occurring during
the period 1968-71 had been made by students in Jesuit schools,
that there are serious matters warranting resolution.
It may be reasonably expected that the Society is or will be conducting further investigations into these matters.
In my view, it is highly desirable that it do so.

223 While it is beyond the scope of this Review to enquire into the details of all such cases,
the Review sought to establish whether there were particular features of the other 21 cases
that may provide further context in which the circumstances of Higgs' move could be understood.

By letter dated 3 December 2019, the Review requested that the Society advise on the following:

1. How many individual Jesuits were the subject of complaint in the 21 other cases?

2. Of the 21 other cases, how many of these were the subject of

47 A submission to similar effect was also received from a survivor who had worked with Dr Murphy.
contemporaneous complaints, and, how were the complaints in those cases dealt with by the Society?

3. Were any contemporaneous records or documents created in 1968 - 1971 relating to the 21 other cases?

4. Has the Society explored whether persons the subject of those complaints were moved
frequently or at unusual times in the year, and if so, how those moves were explained?

5. Did then Provincial Kelly know about any of the 21 other cases during his time as Provincial? If he knew, how did he respond?

6. In 1968 - 1971, was there any awareness that sexual impropriety by Jesuits in relation
to students was a problem? If so, what guidance (if any), formal or informal,
was provided by the Society to Jesuit Colleges as to how it was to be dealt with?

7. If there was no awareness or consistent practice of dealing with such complaints in 1968 -1971, when did an awareness of the problem emerge?

8. Was moving a Jesuit the subject of a complaint to another place one of the ways that such problems were addressed in 1968 - 1971?

9. Are there other aspects of the way these cases were dealt with that may assist the Inquiry in understanding the Society's response to the Higgs complaints?

224 The Society responded to that request on 11 December 2019 and indicated that:
The Society of Jesus’ (Society) ability to respond to much of your letter is limited by the
effluxion of time of (at a minimum 48 years),
the unavailability of witnesses (so many individuals are deceased and, particularly.

Provincial Kelly who has been deceased since 2004) and the absence of documentation
(we address below that certain school records are no longer in existence).
As you are aware, the Society has caused extensive searches to be undertaken for records
and all available records have been provided to the Inquiry.

The Society is not aware of any other records that would be relevant in either a positive or negative way and,
as such, there is no additional information that can be provided that would be of assistance
to the Inquiry for the purpose of understanding the Society's response to any complaints
that may have been made against Victor Higgs and/or other Jesuits in the period 1968 to 1971.

Of the 21 other cases of complaints of sexual impropriety referred to in our letter dated 14 October 2019,
the earliest complaint was made in 1996 and 18 were made since 2003....
We also note that 14 of those complaints relate to schools in Victoria.
The Society has made further inquiries with Xavier's archivist who has confirmed that
there are no records relating to any students prior to 1980
(other than being able to confirm a student attended the School)
as they were all destroyed for the purpose of saving space. [1]
The Society also notes that Xavier did not employ an archivist until 2014.


225 While the focus of this Review has been to examine, as extensively as is practicable,


5 In addition to the archives maintained by the colleges, which retain material relevant to the history of that college,
the Society maintains a central archive which has been managed by Fr Head since 2004.

6 This central archive was formally established in around 1920, and consists of about 2500 boxes of material.
To a large extent, this material is searchable through an electronic database,
into which the topics of the material stored in those boxes has been inputted over the years. [2]

3 The Athelstone archive commenced in around 1999 when Warren Murphy,so then a teacher at the college,
began the task of bringing together records that were held in various boxes throughout
the Athelstone and Norwood campuses and at the Jesuit Residence, all in Adelaide.


Mr Murphy was aware that there were no headmaster's files, diaries or correspondence from that period whatsoever,
and knew that no files of the Jesuit staff from that period were retained in the college archive. [3]
In those circumstances, Mr Murphy quickly formed the view that there were likely to be few if any records relating to Higgs.

10 While Mr Murphy knew it was possible that there would be a reference to Higgs in one or more student files,
he was not given the names of any students who may have a connection with Higgs so did not review these files

Queries:
[*1] This seems partly incorrect. A large book containing all students exam results (1960's era at least) does exist.

[*2] Topics of the arcvive material is digitized by a Jesuit priest.
What chance sex abuse would become a topic?
It would seem Fr. Head's search of the archives was limited to searching from the digital topic references.
Leaving possibly many un-categorized files not findable.

[*3] Perhaps they were sent to the central Jesuit archive.



Secondly, in light of the revelation by the Society to the Review of 21 cases of sexual offending
other than Higgs during 1968-71, it is apparent there was a serious pattern of deviant
criminal behaviour being perpetrated across the Society such that the Consult,
including therefore Fr Wallace, would likely have discussed the pattern and how to manage it.
On the readily concluded assumption such discussion occurred at the Consult,
the location of Higgs could have actually been part of a much larger and more
challenging problem of where to locate not merely one but up to 22 problematic priests or brothers.
However, I am unable to make such a finding absent more information about the other 21 cases.
page 51

 

 

DEFAMATION - Shoot the Messenger.
Quite a number of people have asked me if I have ever been sued or threatened because of content on this website.
I haven't been sued but I have been threatened. And now it seems they are getting serious.

Apart from a few minor corrections I have had to make when I am informed of an error, I have only ever twice been asked to remove something from this website.
One was a photo of a family group with Peter Quin SJ (dec.), which I did.
The other was relatives of Philip Wallbridge demanding I remove everything about Wallbridge, and /or the whole website (which I didn't).
They also blamed me for him taking his own life.
This is part of a phone conversation I had with them (Terry and Elizabeth, step children of Philip Wallbridge).
(correction: they are not man and wife as previously thought)

Terry:
"pull the fucking thing down now" (meaning this website).
"the information portrayed on that website is one of the primary reasons he did what he did"
Me: Are you sure about that?
"i am fucking definitely 120% sure, my friend"
(the curious thing about that is if it upset him so much and if it was untrue why didn't he demand I remove the information?)

"The other thing you need to mindful of is Philip Wallbridge has some very high profile friends in the legal sector and you might be finding some stuff gets thrown down at you like a grenade, buddy"
"you're bordering on the whole defamation and slander issue" "Pull the fucking thing down now"

Elizabeth: "you just need to take the website down, do you understand?
Before you go and destroy more lives" "and it seems to me that ... this is potentially...you enjoy it...you enjoy (unclear) lives".

"what if these allegations prove to falsehoods or fabrications"

Me: Did Philip Wallbridge say to you that all these allegations were untrue?
" the conversations he had with his family are not for you to be privy to".
" I have four children and never have I felt uncomfortable about them being around that man".
" I would be highly surprised, some of it may have happened but not to the extent that you put it there and not to the extent and not to the extent that it warrants the harrassment that you've given this poor old man."
"I hold you 100% accountable, you need to take that website down today, do you understand?" ( Elizabeth).

There was a whisper/rumour last week that someone was going to sue me for defamation.
Then yesterday (Sat. 22 Feb. 2020) an Old Xaverian I know, who also has AFL football connections, said to me out of the blue:
"you do that social media stuff don't you?"
I said "yes".
He said: "you better save your money and have a good lawyer".
I asked him "can you tell me more?"
He said again save your money.
Later I asked if he would like to hear the other side of the story.
He said "that's the last word I'll ever say to you".
I walked away and said "I think you're enjoying threatening me".

So, I have to assume this is about Philip Wallbridge and these are his "powerful" friends seeking vengeance.
Is it just a scare campaign or are they finding someone to sue me?
Right now I can't think of anyone I have mentioned in this website who would be in the Wallbridge/Old Xaverian circle and who would have cause.

If they do it, who it might be is irrelevant, that person will be a proxy in a malicious campaign to destroy me financially (which wouldn't be hard).

I did suggest to this man and wife that they should ask Brian McCoy SJ for all information he has on Wallbrige's offences and any compensation settlements.
And that they should ask Bill Uren SJ all about the report he received from Sister D'Orsa at Xavier which caused Uren to dismiss Wallbridge immediately.
Another factor was Wallbridge being under police investigation for the 6 months or so before his death.

On 24 Feb. 2020 I emailed Brain McCoy SJ suggesting he contact this man and wife in a pastoral manner and try to help them. I have not received a reply (28 Feb. 2020).

But, it seems this group do not want to know or believe the truth and are looking to blame and punish someone for Wallbrige taking his own life.

We see yet again the defenders of sex abusers deliberately ignore the victims/survivors.
The Rector of Xavier College sitting around with a group of boys all drinking and mastubating is nothing really.

Apart from the above:
No one has ever told me what I have published is wrong and/or why it is wrong.
No one has ever said to me remove their name and information (including Philip Wallbrige).

This website contains truth, allegations, opinion, some satire and humour and reports from others.
Its pretty dumb coming after me because even if they win it won't change or affect this website or its existence (apart from some little thing which might be judged to be defamatory).

If the complainant loses the action he/she could then be sued for Malicious Prosecution by the defendant.
I think there is a strong case for malice in the information above.

July 5, 2021

The defamation laws have just changed in most of Australia.

The new defamation laws tip the scales in favour of free speech, but it is not a free-for-all as journalists must prove their claims are in the public interest.
Changes to defamation laws came into effect in New South Wales, Queensland, Victoria and South Australia on 1 July and the other jurisdictions will follow suit later this year.

But does that mean we're about to see more courageous journalism?

Simply put, yes. The changes have been welcomed by those working in the media industry as journalists can now argue that publishing a story was in the public interest, instead of relying on having to prove it was true.
What do the new changes mean?

New South Wales Attorney General Mark Speakman, one of the architects of the laws, said the changes were important.

"Defamation law is a difficult balancing exercise between freedom of speech on one hand, and protecting personal reputations on the other," he said.

"I think the dial had been shifted too much against free speech in New South Wales and Australia."

"It was stifling responsible journalism to an extent that we don't see in any other western country."
The new public interest defence is based on a UK model and is expected to be most useful in cases involving high-profile public figures, such as politicians.

Former attorney general Christian Porter discontinued his defamation case against the ABC in May.
Can journalists now publish whatever they like?

No.

National spokesperson for the Australian Lawyers Alliance Greg Barnes SC said the courts will not "reward reckless conduct or people that just make up stories".

So in the scenario of a politician having an extramarital affair, for example, the argument can work "to the extent that the private life impinged on politicians’ duties", he said.

It could be valid if the politician is thought to be using taxpayer money to fund the relationship, for example.

"But, if it is simply that the politician is having a relationship with someone, then that is not something that would be a responsible communication."

"[The law is] designed to protect journalists who are writing stories about government corruption or allegations of wrongdoing by officials, ministers or the military."

On top of that, the journalist needs to prove their claims were not baseless or reckless, even if they were later found to be false.

For this there is a set criterion, according to Mr Speakman, to help a jury (or judge, depending on the state) decide if the story was in the public interest.


"[This includes] the seriousness of the imputation, the integrity of sources, whether there was an attempt to obtain the other side of the story, and what steps were taken to verify the information,” he said.

"These will be jury questions, so you are relying on the common sense of people's peers."
What about other high-profile people?

This is where it gets a bit trickier and the public interest defence may be argued in court.

There is an argument on one hand that due to a celebrity’s high profile, for example, the allegations surrounding them are in the public interest. On the other hand, it can be argued the laws were intended only for those using public funds.

In referencing recent high-profile cases Mr Barnes said they "will be decided on a case by case basis".

"I think in the Geoffrey Rush case and the Rebel Wilson case, the question of whether there is a defence of responsible communication is much more complex than it is in cases such as Christian Porter, as he's a public official," he said.

"In the Geoffrey Rush case, you may be able to argue that it is in the public interest, simply because of his high profile and because of the nature of the allegations that were made."

"On the other hand, there would be strong arguments to say this is not what is meant by public activities."

In short, we need to wait and see, as the first few cases tried under these laws will establish a precedent for how broadly the court will interpret the public interest defence.

It is important to note the allegations of inappropriate behaviour made against Geoffrey Rush were found to be “not credible or reliable” in court.
How do these changes affect more low-profile matters?

Legal experts say it means more trivial matters will not make it to court under the changes.

There is a new process aimed at settling matters outside of court, which is targeted at small claims where legal costs often outweigh possible damages.

At the outset of proceedings, the onus will be on the plaintiff (the party which says they have been defamed) to prove that the matter has caused serious harm to the reputation of the person.

Mr Speakman said this is designed to "unclog" the court system, which he said is needed as NSW's "rate of defamation litigation is about 10 times what it is in London, for example".

"The majority of defamation cases are at the low end of the scale, involving low amounts of money, and they are best settled without going to court," he said.

"And when they do end up in court, the tail wags the dog, the costs become the driver of the case rather than the underlying dispute."

The new laws will only apply to articles published after 1 July 2021. For online articles, defamation claims must be made within 12 months from the date of first publication
♦ www.sbs.com.au

Defamation law reforms 2021
National defamation law reform MinterEllison considers the changes
♦ www.minterellison.com PDF document downlaod

Overview
Australia's outdated defamation laws have long been slanted in favour of plaintiffs.
However, the 'plaintiff's bonanza' may be somewhat tempered by the recent passage of the Defamation Amendment Bill 2020 (NSW) (Bill) on
6 August 2020.1 The Bill is based on a raft of reforms proposed by the Council of Attorneys-General in late July.
It is expected that identical copies will be passed in all other states and territories.
The amendments signal to the courts that the balance must shift towards freedom of expression.
Among the most significant inclusions are:
▪ a 'serious harm' element to weed out trivial claims;
▪ a dedicated public interest defence for reports on matters of public concern;
▪ a single publication rule so that the limitation period for online publications runs from the date the material is first
uploaded rather than each time it is downloaded;
▪ clarification that a defendant may 'pleadback' aplaintiff’s imputations to establish a defence of contextual truth;
and
▪ provisions aimed at clarifying the statutory cap for damages for non-economic loss.
Defamation law remains a 'Frankenstein’s monster' of 'countless complications and piecemeal reforms riveted to the rusting hulk of a centuries’ old cause of action',2 but these reforms represent a significant improvement. However, the effectiveness of the new provisions will largely hinge on how they are interpreted by courts.

Coalition of lawyers call for ‘flawed’ defamation reforms to be axed ♦ www.smh.com.au
A group of prominent defamation lawyers has urged state and territory governments to abandon
a nationally-agreed set of reforms to the country’s defamation laws,
just hours after NSW, Victoria and South Australia announced the laws would commence on July 1.

Sydney barrister Sue Chrysanthou, SC, who is acting for federal Liberal minister Christian Porter
in his defamation case against the ABC, is among the signatories to a briefing note circulated to state MPs on Thursday,
which condemns the changes as “fundamentally flawed” and calls for them to be scrapped.
Defamation is something that:
"lower/harm (some person's) reputation,hold the(some person) up to ridicule, or lead others to shun and avoid the (the person)"

The defence is its true or is "qualified privilege", which applies when you have an interest or a legal, social or moral duty to communicate something to a person and that person has a corresponding interest or duty to receive the information.

I do think I have a duty to inform other survivors and the general public about Jesuit sex abuse and the difficulties they will face if they make a complaint.

Many survivors have found this website very helpful to them in their quest for justice and self-recovery.
And a lot of it is information that they could not have got anywhere else.

However the defence will fail if the plaintiff can show that you were actually motivated by malice to make the communication.
Malice is what Robert richter QC tried to show in his examination of the Broken Rites man in the Pell trial. "you were out to get the catholic church, weren't you?"

Defamation does not apply to private conversations. So when Brian McCoy SJ said to other people that I am "a danger to myself and others", "obsessed", "demanding", "abused people on retreat" it is not defamation.

Generally corporations can't sue for defamation, there is an exception.
1. it is a non-profit corporation and not a public body (such as a local government or public authority); or
2. it employs less than 10 people, is not related to another corporation and is not a public body.
(BTW. My lawyer is Mr. Google QC).



Defamation awards

Chau Chak Wing awarded $590,000 in defamation case over ABC Four Corners episode

Chinese-Australian billionaire wins case and ABC restrained from republishing parts of episode
Chinese-Australian billionaire Chau Chak Wing has been awarded $590,000 in damages after winning his defamation case over an ABC Four Corners episode.

The businessman, philanthropist and political donor sued the broadcaster, Nine and Nick McKenzie,
an investigative reporter at the Age and the Sydney Morning Herald, over the joint report.
McKenzie presented the 2017 program and the investigation included an accompanying article on the ABC website.
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