The Background
Legislative changes have been introduced by the Commonwealth and NSW Governments aimed at improving access to justice and the legal rights of child sexual abuse survivors. The proposals are part of a continuing suite of legal changes over the last few years aimed at addressing the recommendations made by the 2015 Royal Commission into Institutional Responses to Child Sexual Abuse.
At the Federal level, the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020 (Cth) (National Redress Bill) has now been passed. It is expected that the National Redress Bill will improve the efficiency of the existing redress scheme and expedite the determination of redress claims.
In NSW, the Civil Liability Amendment (Child Abuse) Bill 2021 (Child Abuse Settlement Bill) will amend the Civil Liability Act 2002 (NSW) to allow courts to set aside unfair settlement agreements entered prior to legislative reform in 2016 and 2018 which removed the ability for defendants to rely on certain technical defences. It is expected that the NSW Legislative Assembly will vote on the Child Abuse Settlement Bill shortly. Similar legislation has already been passed in other states.
The National Redress Bill
The National Redress Bill was assented to on 1 March 2021 and has introduced amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (National Redress Scheme).
The National Redress Scheme was introduced on 1 July 2018 and will run for 10 years. The scheme provides a means for survivors of institutional child sexual abuse to obtain compensation from participating institutions without the costs, delay and uncertainties associated with civil litigation.
Under the National Redress Scheme, a payment of $150,000 may be awarded, counselling and psychological support of up to $5,000 and a direct personal response from each participating institution responsible for the abuse. As at late 2020, over 3,600 payments had been made to survivors totalling about $298 million.
The National Redress Bill introduces changes designed to increase the efficiency of the National Redress Scheme. These changes include:
- The Minister for Families and Social Services is no longer obliged to obtain ministerial-level approval before engaging an independent decision maker to determine a redress application. It is expected that this change will allow redress applications to be determined quicker and more efficiently.
- An applicant’s redress payment will now be able to be made to a third party nominated by the applicant such as a public trustee with financial management powers. Previously, redress payments could only be made personally to an applicant, which was not suitable for individuals whose finances were administered by a third party.
- Certain restrictions on disclosing protected information about participating institutions have now been lifted. It is expected that these changes will allow for more transparent consultation with organisations intending on joining the National Redress Scheme. This is important in circumstances where the scheme is voluntary and therefore reliant on participating institutions.
The Child Abuse Settlement Bill
Background
On 23 December 2020, we reported on a proposed bill in NSW to permit courts to set aside unfair child sexual abuse settlement agreements. You can view our article here. The Child Abuse Settlement Bill has now been introduced into NSW Parliament and its second reading speech was given on 17 March 2021.
The objects of the Bill are to enable courts to set aside settlement agreements for child sexual abuse where it is “just and reasonable” to do so. The “just and reasonable” test has been adopted by other state and territory jurisdictions under their equivalent regimes, including in Tasmania, Queensland, Western Australia, the Northern Territory and Victoria. As a threshold issue, the agreement in question must be an “affected agreement” which includes both:
- agreements entered when a limitation period applying to the cause of action had expired (section 6A of the Limitation Act 1969 (NSW) was subsequently introduced in 2016 to allow claims of child abuse to be brought at any time and therefore not subject to a limitation period); and
- agreements entered at a time when a cause of action could not be maintained because the organisation that would have been liable was unincorporated (Part 1B of the Civil Liability Act 2002 (NSW) was subsequently introduced in 2018 to allow court proceedings against unincorporated associated where this was not previously possible due to the so called “Ellis defence”).
In determining whether it is just and reasonable to set a settlement agreement aside, the court is specifically entitled under the Child Abuse Settlement Bill to consider the amount paid to the plaintiff under the agreement, the bargaining position of the parties, the conduct of the parties’ legal representatives and any other relevant matter. These criteria are non-exhaustive. The Bill also makes clear that section 131 of the Evidence Act 1995 (NSW) (which deals with the non-admissibility of evidence of settlement negotiations) does not apply to the new regime.
The non-exhaustive criteria introduced by the Child Abuse Settlement Bill are broadly consistent with the criteria adopted by Tasmania under its equivalent scheme. On the other hand, Queensland, Western Australia, the Northern Territory and Victoria have not introduced similar criteria.
Defendants and insurers should be conscious that the terms of the Child Abuse Settlement Bill do not apply to an agreement settling a cross claim between two or more defendants or an agreement by which one defendant indemnifies another. The Child Abuse Settlement Bill also makes clear that Part 2A of the Civil Liability Act 2002 (NSW) which governs personal injury claims by offenders in custody (and restricts the damages claimable by such offenders), does not apply to injuries arising from child abuse.
Remaining questions
Despite the terms of the Child Abuse Settlement Bill, questions remain regarding “mixed” settlement agreements comprising both causes of action founded on child abuse allegations and other causes of action to which the bill is not intended to apply. While it is unclear at this stage, there appears to be some prospect that mixed settlement agreements may be set aside in full despite containing causes of action unrelated to child sexual abuse. On saying this, the “mixed” nature of a settlement agreement is likely to remain a relevant factor which a court will consider when deciding whether it is “just and reasonable” to set aside the agreement in full.
Implications for you
The National Redress Bill and Child Abuse Settlement Bills are consistent with the federal, state and territory governments’ continued efforts to strengthen the rights of survivors of child sexual abuse.
If passed, the Child Abuse Settlement Bill is likely to result in a reagitation of previously settled claims that were influenced by the “Ellis” defence and/or expired limitation periods. Defendants and insurers should be aware of the trend of authorities developing in the other Australian states and territories which are likely to provide some insight into how NSW courts may approach the issue.
NSW Government: Civil Liability Amendment (Child Abuse) Bill 2021
BN Insight: NSW Bill to permit courts to set aside child sexual abuse settlement agreements (23 December 2020)
