Survivors of institutional child abuse will be able to overturn unfair settlements and pursue much higher child abuse compensation under new laws before the NSW parliament.
Under a proposed amendment to the Civil Liability Act 2002, the Civil Liability Amendment (Child Abuse) Bill 2021 will enable the courts, where reasonable, to set aside agreements that had settled child abuse claims and to ensure that awards of damages are not restricted.
Victims of institutional child abuse will now have access to fairer compensation
Announcing the change in March 2021, NSW Attorney General Mark Speakman said it will provide a clear pathway for survivors of institutional child abuse to be "properly compensated for the appalling mistreatment they suffered as children". (See media release, New laws to overturn unfair child abuse payouts.)
"We know from the harrowing accounts heard by the Royal Commission 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," Mr Speakman said.
"This Bill will give the courts the power to set aside certain settlement agreements for sexual abuse, serious physical abuse, other connected abuse and enable survivors to access the civil justice they deserve."
Eliminating legal barriers to child abuse compensation
The 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.
Many victims had little choice in the past but to settle for ridiculously low compensation, sometimes as little as $5,000, because the abuse happened long ago or because the institution hid behind legal barriers.
Time limits on claims abolished and unjust settlements can be overturned
Past settlements often included secrecy agreements which threatened to end the payout if the victim spoke publicly about the abuse they endured.
This amendment means those settlements can now be overturned. There will be no time barrier to lodge a claim, and no maximum amount for victim payouts.
The new laws 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.
Under the new laws, victims who have earlier agreements that could be declared unfair or unjust will have the power to go to court. This opens the pathway to receiving proper compensation.
It also allows victims of child abuse in custody to litigate, with no limit to the compensation the court can award.
Government announces advance child abuse compensation payouts
The Civil Liability Amendment (Child Abuse) 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.
Also included were proposals to eliminate limitation periods for child abuse claims and 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.
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 traumatising. (See Advance compensation payments to be made available to some child sexual abuse survivors following national redress scheme review, ABC News, June 2021.)
Con Ktenas
Abuse claims
Stacks Goudkamp
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