THE NSW Government will remove legal barriers that have stopped child sexual abuse survivors from taking legal action against institutions including the Catholic Church, Attorney-General Mark Speakman announced today.
The government will pass laws to stop institutions relying on the so-called “Ellis Defence” and avoid liability for child sexual abuse by not having entities with assets that can be sued.
Mr Speakman made the announcement with Catholic Church abuse survivor John Ellis, whose unsuccessful legal case against the church established the “Ellis Defence” in 2007 when he tried to seek damages from Sydney Archdiocese.
“It’s a good day. I wasn’t sure we’d ever see this day,” Mr Ellis told the Newcastle Herald.
At a media conference Mr Speakman said the government was implementing recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse’s redress and civil litigation report.
The new laws will include two new forms of civil liability for child abuse and new measures to allow historic and current claims of child abuse against organisations, including churches, that could not previously be sued.
The NSW Government will remove legal barriers that have stopped survivors of child abuse from seeking the justice they deserve.NSW Attorney-General Mark Speakman
“The NSW Government will remove legal barriers that have stopped survivors of child abuse from seeking the justice they deserve,” Mr Speakman said.
“The Royal Commission found many survivors felt let down by the current civil litigation system which made it difficult for them to seek damages and hold institutions to account.
“These reforms will provide access to new avenues to allow survivors to pursue compensation so they can focus on recovering and moving forward with their lives.”
The suite of changes will give courts the power to appoint trustees to be sued if institutions fail to nominate an entity with assets.
The government will also extend the liability of institutions to include non-employees like volunteers and religious officers.
It will also impose a new statutory duty of care on all institutions that exercise care, supervision or authority over children to prevent child abuse. From the date of the new legislation an institution will be liable for child abuse unless it can prove it took reasonable precautions to prevent the abuse.
Mr Speakman said NSW was the first state to pass laws enabling the National Redress Scheme and to introduce a comprehensive criminal justice response to the Royal Commission. It was the second state to announce laws to overcome the Ellis Defence, after Victoria announced legislative changes in march.
The NSW Government has already lifted limitation periods blocking some child abuse claims, and by 2014 had introduced new guidelines to ensure it provided a more compassionate and consistent approach to abuse victims attempting to sue the state in abuse cases.
Mr Speakman said the civil litigation reforms would be introduced before the end of 2018.
They follow extensive consultation with stakeholders including government and non-government agencies, survivor groups, churches, the insurance industry and legal profession.