Recent Amendments to Historical Child Abuse Laws in NSW

Throughout the Royal Commission’s 5-Year Inquiry into Institutional Responses to Child Sexual Abuse, and following the Royal Commission’s Final Report in 2017, it was evident that significant legislative reform was needed in order to appropriately serve the community and provide justice to Victims. Between 2016 and 2021, the practice area of Historical Abuse Law has undergone several legislative amendments to rectify some of the key concerns for Victims and practitioners.

In 2016, Section 6A was inserted into the Limitation Act 1969 (NSW) removing the statutory limitation period for claims of child abuse, including for: sexual abuse, serious physical abuse, or connected abuse, committed against a child. This had sweeping impacts upon many people in the community - specifically providing new avenues to justice for adults who had suffered abuse as a child decades earlier.

In 2018, Part 1B was introduced into the Civil Liability Act 2002 (NSW) (‘CLA) making three further changes. Firstly, it imposed a statutory duty of care to prevent child abuse on certain organisations that exercise care, supervision, or authority over children. Secondly, it extended vicarious liability from employees to non-employees of an institution who are akin to an employee. Thirdly, it provided that a ‘proper defendant’ with suitable assets may be appointed for claims brought against an unincorporated organisation.

The 2016 and 2018 reforms were recommended by the Royal Commission and have been well received amongst practitioners in the area. However, many settlements finalised prior to the 2016 and 2018 changes are now considered unfair. In light of this, further significant amendments were made to the CLA in 2021, seeking to rectify any of these prior unjust settlements. These 2021 amendments go beyond the recommendations of the Royal Commission, and were implemented in consideration of input from various stakeholders including survivors, religious and educational institutions, and insurers.

The Civil Liability Amendment (Child Abuse) Act 2021 was enacted in 2021 to further amend the CLA. Two parts of the Act were amended, with the amendment of Part 1C being of particular value to many victims. Part 1C now gives the Court the power to set aside an ‘affected agreement’, being an agreement that occurred:

• Before the commencement of Section 6A of the Limitation Act;
• Before the commencement of Part 1B of the CLA, where at the time of the agreement, an organisation, that would have been liable under Part 1B, was not incorporated; or
• Before the commencement of Part 1B of the CLA, where the agreement is not just and reasonable in the circumstances.

Once an agreement has been deemed an ‘affected agreement’ the Court has discretionary power to set it aside. When making its determination, the Court may consider: the amount paid to the applicant under the agreement, the bargaining position of the parties to the agreement, the conduct of the parties; and any other matter the Court considers relevant. Once set aside, individuals are entitled to run their claim again, with the benefit of the new legal framework.

The 2021 amendments also removed requirements in Part 2A of CLA claims of child abuse brought by individuals who were offenders in custody at the time of the abuse, including a minimum threshold of 15% whole person impairment, and that any damages awarded to the claimant would have to be paid into a trust account, from which victims could claim damages. The 2021 amendments inserted section 26B(2A) to amend this structure. Ultimately, S26B(2A) provides that the Part 2A restrictions do not apply to child abuse claims and that this section is retrospective in effect.

Whilst many academics and practitioners argue that the practice area still has a long way to go in developing reforms to adequately promote justice for victims of Historical Child Abuse, it’s undeniable that the trajectory of reform since the inception of the Royal Commission, and the impact of sweeping reforms on Victims and the broader Australian community, has been transformative.?

Jacob Cavill - Solicitor

Kirra Smith - Law Graduate

Adelle Gregson - Law Clerk