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Wednesday 18 March 2020
Law reform - survivors of child abuse
Jurisdictions around Australia have started to respond to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). In its report on Redress and Civil Litigation, the Royal Commission recommended that all jurisdictions remove limitation periods for child sexual abuse as soon as possible. It also made a number of other recommendations designed to remove obstacles in civil litigation that prevented survivors of abuse from accessing justice.
While supporting the Royal Commission’s prioritised removal of limitation periods, the Australian Lawyers Alliance believes that comprehensive law reform is required as soon as possible to ensure that survivors of child abuse are not unfairly prevented from accessing compensation for the injuries caused by the abuse. We also believe that consistent law reform across all Australian jurisdictions is the best way to secure justice for everyone, wherever they might be in the country.
Some jurisdictions are already starting to consider and implement some of the Royal Commission’s recommendations. As such, we felt it was timely to share what we consider to be best practice law reform to ensure justice for all survivors of child abuse.
The ALA believes that the following reforms are necessary to ensure that justice is fully accessible for survivors of child abuse:
- Limitation periods should be removed for all actions for compensation for injuries arising from child abuse of a sexual, physical or associated psychological nature;
- Institutional involvement in child abuse should not be required in order for other law reforms enhancing access to justice to apply;
- All reforms should be retrospective, so that survivors of child abuse that has already occurred who are discovering their injuries now or in the future are not inhibited from accessing justice;
- Where an institution is involved in child abuse, liability should be attached to them by way of vicarious liability, combined with a close connection test;
- Where an institution is involved in child abuse, a proper defendant should always be identifiable. Where the institution itself does not nominate a proper defendant, any trust or similar asset or insurance-holding entity connected with the institution should be answerable to any suit against the institution for compensation related to injuries stemming from child abuse;
- Deeds of release that relate to settlements that have been reached under laws in place prior to the reforms enhancing access to justice for survivors of child abuse should not be enforceable. Where an individual has received an inadequate settlement sum due to the existence of defences that the Royal Commission and this paper recommends removing, that sum should be taken into account in determining a fairer amount, in view of common law principles.
We are happy to work with any jurisdiction or policy-maker to assist in realising these recommendations.