THE NSW Government has introduced new laws into Parliament that will remove controversial barriers that stopped child sexual abuse survivors from taking legal action against institutions.
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Attorney-General Mark Speakman introduced the new civil litigation laws in Parliament on Wednesday during a speech acknowledging the “sheer staggering scale” of child sexual abuse in institutions across Australia that was revealed by the Royal Commission into Institutional Responses to Child Sexual Abuse.
The commission exposed “the abject failure of numerous institutions right across the country to protect those whose lives, whose protection, was entrusted to them”.
“I doubt there is a member in this chamber who wasn’t shocked and distressed by the revelations,” Mr Speakman said.
The civil litigation reforms, announced by Mr Speakman in June, are the third major element in the NSW Government’s response to the royal commission, following the government’s acceptance of the majority of criminal justice reform recommendations and its sign-up to the national redress scheme.
The civil litigation changes include removing the so-called “Ellis defence” that enabled some institutions to avoid liability for child sexual abuse. The defence was named after abuse survivor and lawyer John Ellis who attempted to sue Sydney Catholic Archdiocese for abuse in the 1970s but lost his case after the archdiocese successfully argued no recent church entities were liable.
Under the new laws courts will have the power to appoint trustees to be sued if institutions fail to nominate a proper defendant.
In June Mr Ellis said it was “a good day”, when the Attorney-General announced the reforms.
“I wasn’t sure we’d ever see this day,” he said.
The new laws will also extend the vicarious liability of institutions for employees to include non-employees like volunteers or religious officers. They will impose a duty on institutions to prevent child abuse and if legal action is taken organisations will be held liable unless they can prove they took reasonable precautions to prevent abuse.
“Overhauling the civil litigation system is an historic milestone for survivors, making it easier for them to pursue compensation for child abuse. Nothing can erase the devastation survivors have suffered, but these changes will help ensure institutions are more effectively held to account,” Mr Speakman said.
“This legislation is the latest example of the NSW Liberals and Nationals Government leading the way in supporting survivors of institutional child sex abuse. NSW was the first state to pass laws to enable the establishment of the National Redress Scheme and to introduce a comprehensive criminal justice response to the Royal Commission.”
On August 31 new criminal laws came into effect, including a new failure to report child abuse to police offence, a new failure to protect children obligation on organisations, and changes to sentencing so that current sentencing standards will apply to historical offending.
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