Proposed child abuse compensation laws in NSW give survivors some hope of justice

2nd Sep 2021

Survivors of institutional child abuse will be able to overturn unfair settlements and pursue much higher child abuse compensation under new proposed laws before the NSW Parliament.

Under a proposed amendment to the Civil Liability Act 2002, the Civil Liability Amendment (Child Abuse) Bill 2021 (the Bill) will enable the courts, where reasonable, to set aside agreements that had settled child abuse claims and ensure that awards of damages are not restricted.

Fairer compensation for victims

In March 2021, NSW Attorney General Mark Speakman announced that the amendment would provide a clear pathway for survivors of institutional child abuse to be ‘properly compensated for the appalling mistreatment they suffered as children’.

‘We know from the harrowing accounts heard by the Royal Commission [into Institutional Responses to Child Sexual Abuse]’, Mr Speakman said,  ‘that many survivors, often suffering significant trauma, felt they had no choice but to accept an inadequate settlement due to legal technicalities preventing them from suing responsible institutions.

‘This Bill will give the courts the power to set aside certain settlement agreements for sexual abuse, serious physical abuse, [and] other connected abuse and enable survivors to access the civil justice they deserve.’

Eliminating legal barriers to compensation

This new legislation will be very welcome for the many victims of institutional child abuse who were denied proper justice due to legal technicalities.

This includes victims of child abuse in schools, churches, orphanages, care organisations, custody and health facilities.

In the past, many victims had little choice but to settle for ridiculously low compensation amounts – sometimes as low as $5,000 – because the abuse occurred a long time before or because the responsible institution hid behind legal barriers.

Time limitations and unjust settlements

Past settlements often included secrecy agreements that threatened the agreed compensation amount if the victim spoke publicly about the abuse they endured.

The proposed amendment will allow those settlements to be overturned. Further, there will be no time limitations to lodging a claim, and no maximum threshold for victim compensation.

If passed, the new laws will apply to those who have already received child abuse compensation which was inadequate, as well as to those who had signed an agreement stipulating that they could not go to court seeking a higher payout.

The Bill also proposes that victims who have earlier agreements which could be declared unfair or unjust will have the power to go to court, creating a pathway to receiving proper compensation.

It also allows victims of child abuse in custody to litigate, with no limit to the compensation ordered by a court.

Advance child abuse compensation payments

The Bill is the latest in a series of legal reforms following the recommendations of the 2013 Royal Commission into Institutional Responses to Child Sexual Abuse.

The Royal Commission included proposals to eliminate limitation periods for child abuse claims and to abolish the legal technicalities which allowed some institutions to avoid civil liability.

The Bill is currently before Parliament and is being supported by the Opposition Party.

In June 2021, the Government announced that elderly or terminally ill survivors of child sexual abuse will have access to advance compensation payments after an inquiry found the current application process to be too slow, complicated and re-traumatising.

This is an edited version of an article first published at Stacks Law.

Con Ktenas is an accredited specialist in personal injury law­­ at Stacks Goudkamp and a nationally accredited mediator.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Royal Commission into Institutional Responses to Child Sexual Abuse Child Sexual Abuse Law reform