ALA welcomes improved access to justice for child sexual abuse survivors
12th Jun 2018
NSW has advanced the position of victims significantly by adopting legal changes that will apply retrospectively and will improve access to justice for abuse survivors, says the Australian Lawyers Alliance (ALA), commenting on the announcement made by the NSW government on the weekend.
“We welcome the adoption of retrospective changes that overcome the Ellis defence and allow for a defendant to be sued ensuring that organisations, such as the Catholic Church, cannot avoid responsibility for those people, including priests, whom they claim not to employ,” said Dr Andrew Morrison, RFD SC, spokesperson for the ALA.
“We are pleased to see that the changes in NSW are fully retrospective, whereas in Victoria they are only partially retrospective."
The changes include reversing the onus of proof, as recommended by the Royal Commission, so that institutions have to prove they acted reasonably.
“The only disappointment is that the government, having considered adopting the ‘close connection test’ for vicarious liability as espoused by the High Court has failed to include this in the legal changes,” said Dr Morrison.
“This means that, assuming institutions provide some evidence, victims will still have an evidentiary burden to prove their cases.
“However, it may be that, after the statements from the High Court in the Prince Alfred College case, there will be strict, vicarious liability in any event where the ‘close connection test’ is met.”