1Legal Identity of Defendants (Organisational Child Abuse) Act 2018

Version No. 002 **Legal Identity of Defendants (Organisational Child Abuse) Act 2018** **No. 18 of 2018** Version incorporating amendments as at 1 May 2020 **TABLE OF PROVISIONS** *Section Page* 1 Purpose 1 2 Commencement 1 3 Definitions 1 4 Application of Act 2 5 What is an NGO? 3 6 Control of associated trust by NGO 3 7 Nomination of proper defendant 4 8 Associated trust to be proper defendant 5 9 Trust property of associated trust available 7 10 Proper defendant may rely on defences and immunities 8 11 Protection from liability for breach of trust 8 12 Insurance policies 8 13 Proceeding may be commenced or continue against NGO pending nomination or appointment of proper defendant 8 14 Corporations Act displacement provisions 9 15 Regulations 9 ═════════════ Endnotes 10 1 General information 10 2 Table of Amendments 12 3 Amendments Not in Operation 13 4 Explanatory details 14 **Version No.** **002** **Legal Identity of Defendants (Organisational Child Abuse) Act 2018** **No. 18 of 2018** Version incorporating amendments as at 1 May 2020 **The Parliament of Victoria enacts:** 1 Purpose The main purpose of this Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non‑government organisations which use trusts to conduct their activities. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 May 2019, it comes into operation on that day. 3 Definitions In this Act— ***associated trust*** means a trust which an NGO uses to conduct the NGO's activities and which it controls; ***child abuse*** means— (a) an act or omission in relation to a person when the person is a minor that is physical abuse or sexual abuse; and (b) psychological abuse (if any) that arises out of that act or omission— and includes alleged child abuse; ***control***, in relation to an associated trust, has the meaning given in section 6; ***management member***, in relation to an NGO means— (a) a member of any management committee of the NGO; or (b) if the NGO does not have a management committee, a person who is concerned with, or takes part in, the management of the NGO, irrespective of the person's title or position; ***NGO*** has the meaning given in section 5; ***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; ***sexual abuse*** means sexual assault or other sexual misconduct; ***trustee*** of an associated trust includes any corporator, member or director of a trustee that is a body corporate. 4 Application of Act (1) This Act applies to any proceeding for a claim founded on or arising from child abuse. (2) This Act applies to an NGO if— (a) a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse; and (b) but for being unincorporated, the NGO would be capable of being sued and found liable for a claim founded on or arising from child abuse; and (c) the NGO controls one or more associated trusts. (3) This Act applies to a claim founded on or arising from child abuse whether the child abuse occurred or occurs before, on or after the commencement of this section. 5 What is an NGO? (1) For the purposes of this Act, a non-government organisation that is an unincorporated association or body is an NGO. (2) An NGO does not need to have— (a) a written constitution or fixed membership; or (b) any other prescribed attribute. (3) For the purposes of this Act, any power which is exercisable by an NGO may be exercised by any management member of the NGO. 6 Control of associated trust by NGO For the purposes of this Act, a trust is an associated trust which an NGO controls if— (a) the NGO has, either directly or indirectly, the power to control the application of the income, or the distribution of the property, of the trust; or (b) the NGO has the power to obtain the beneficial enjoyment of the property or income of the trust, with or without the consent of any other entity; or (c) the NGO has, either directly or indirectly, the power to appoint or remove the trustee or trustees of the trust; or (d) the NGO has, either directly or indirectly, the power to appoint or remove beneficiaries of the trust; or (e) the trustee of the trust is accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the NGO; or (f) the NGO has, either directly or indirectly, the power to determine the outcome of any other decisions about the trust's operations; or (g) a member of the NGO or a management member of the NGO has, under the trust deed applicable to the trust, a power of a kind referred to in paragraphs (a) to (f). 7 Nomination of proper defendant (1) An NGO to which this Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued— (a) to act as a proper defendant to the claim on behalf of the NGO; and (b) to incur any liability arising from the claim on behalf of the NGO. (2) If an NGO nominates a proper defendant under subsection (1), that entity— (a) is taken to be the defendant in the claim on behalf of the NGO for all purposes; and (b) incurs any liability arising from that claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse. (3) Unless the court otherwise orders, a nomination of a proper defendant may occur at any time within 120 days after the commencement of the proceeding for the claim against the NGO. (4) A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim. (5) The nomination of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim. 8 Associated trust to be proper defendant (1) This section applies to a claim if— (a) an NGO fails to nominate a proper defendant under section 7 within 120 days from the commencement of the proceeding against the NGO; or (b) the proper defendant nominated by the NGO is not an entity capable of being sued or does not have sufficient assets or property to meet any judgment or order that may arise in or from the proceeding for the claim. (2) The plaintiff in a proceeding for a claim to which this section applies may apply to the court for an order that the claim is to proceed against the trustees of an associated trust of an NGO on behalf of the NGO as a proper defendant. (3) For the purposes of an application under subsection (2), the NGO bears the onus of identifying any associated trust. (4) On an application under subsection (2), the court may make an order that the claim is to proceed against the trustees of an associated trust of the NGO on behalf of that NGO as a proper defendant. (5) If the court makes an order under subsection (4), any trustee of the associated trust— (a) is taken to be the defendant to the claim on behalf of the NGO for all purposes; and (b) incurs any liability arising from the claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse. (6) More than one trustee of an associated trust, and more than one associated trust, may be a proper defendant and liability may attach to more than one such trustee or trust. (7) A court may make any further order under this section that the claim may proceed, or any judgment obtained on that claim be enforced, against the trustees of one or more other associated trusts of an NGO. (8) A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim. (9) The appointment of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim. 9 Trust property of associated trust available (1) Despite any Act, law or other instrument (including any trust deed)— (a) the trustees of the associated trust may apply any trust property to satisfy any liability incurred in the claim because of being a proper defendant under this Act, including any unpaid judgment debt arising from the claim; and (b) the satisfaction of any liability incurred in the claim because of being a proper defendant under this Act is a proper expense for which a trustee of the associated trust may be indemnified out of the trust property of the associated trust, irrespective of any limitation on any right of indemnity a trustee may have. (2) Liability of a trustee of an associated trust which is a proper defendant under this section (including liability for costs) is limited to the value of the trust property. 10 Proper defendant may rely on defences and immunities A proper defendant under section 7 or 8 may rely on any defence or immunity that would have been available to the NGO as a defendant to the claim had the NGO been incorporated. 11 Protection from liability for breach of trust A trustee of an associated trust is not liable for a breach of trust only because of applying trust property to satisfy any liability incurred by the trustee as a proper defendant in a claim to which this Act applies, including any unpaid judgment debt arising from the claim. 12 Insurance policies (1) Any right of an NGO to be indemnified under any policy of insurance in respect of damages awarded in a claim in a proceeding founded on or arising from child abuse enures for the benefit of, and extends to, any proper defendant in respect of the NGO under this Act. (2) Nothing in subsection (1) excludes an NGO from any coverage or indemnity of the NGO under an insurance policy referred to in that subsection. 13 Proceeding may be commenced or continue against NGO pending nomination or appointment of proper defendant Pending the nomination of an entity as a proper defendant under section 7 or the appointment of a proper defendant in accordance with section 8— (a) a proceeding for a claim founded on or arising from child abuse may be commenced or continue against an NGO in the name of that NGO; and (b) a proceeding for a claim may be commenced against an NGO in its own name despite it being an unincorporated association or body. 14 Corporations Act displacement provisions Sections 9 and 11 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation. **Note** Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. 15 Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing that is required or permitted by this Act to be prescribed or that is necessary to be prescribed for carrying out or giving effect to this Act. (2) Regulations made under this Act— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstance. Ss 16–20 repealed by No. 18/2018 s. 20. * * * * * ═════════════ Endnotes 1 General information See [www.legislation.vic.gov.au](http://www.legislation.vic.gov.au) for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information. *Minister's second reading speech—* *Legislative Assembly: 7 March 2018* *Legislative Council: 1 May 2018* The long title for the Bill for this Act was "A Bill for an Act to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities, to consequentially amend other Acts and for other purposes." The **Legal Identity of Defendants (Organisational Child Abuse) Act 2018** was assented to on 5 June 2018 and came into operation on 1 July 2018: Special Gazette (No. 305) 26 June 2018 page 1. INTERPRETATION OF LEGISLATION ACT 1984 (ILA) Style changes Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act. References to ILA s. 39B Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause. Interpretation As from 1 January 2001, amendments to section 36 of the ILA have the following effects: • Headings All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A). • Examples, diagrams or notes All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A). • Punctuation All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B). • Provision numbers All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C). • Location of "legislative items" A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B. • Other material Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E). 2 Table of Amendments This publication incorporates amendments made to the **Legal Identity of Defendants (Organisational Child Abuse) Act 2018** by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– **Legal Identity of Defendants (Organisational Child Abuse) Act 2018, No. 18/2018** | Assent Date: | 5.6.18 | | --- | --- | | Commencement Date: | S. 20 on 1.7.18: Special Gazette (No. 305) 26.6.18 p. 1 | | Note: | S. 20 repealed ss 16–20 on 1.5.20 | | Current State: | This information relates only to the provision/s amending the **Legal Identity of Defendants (Organisational Child Abuse) Act 2018** | ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 Amendments Not in Operation This version does not contain amendments that are not yet in operation. 4 Explanatory details No entries at date of publication.