New South Wales will allow courts to break unfair settlements forced on child sexual abuse survivors by churches and other institutions and will allow them to bypass gag orders preventing them from speaking out publicly.
New laws, passed on Tuesday, give NSW courts the power to set aside unfair historic settlement agreements for sexual and serious physical abuse.
Survivors groups have welcomed the legislation, saying it will help survivors who faced immense legal barriers and felt forced into accepting pitiful settlements.
Until a wave of reform triggered by the child abuse royal commission, survivors of abuse were unable to sue for historic claims that fell outside the statutory time limit, despite a wealth of research showing delays in reporting were common.
Survivors also faced what the NSW attorney general, Mark Speakman, describes as a series of “legal technicalities” shielding institutions from civil cases.
NSW, like other states, introduced reforms in 2016 and 2018 to seek to remove legal barriers to justice for abuse survivors, acting on the royal commission’s recommendations.
But it is now going further by giving the courts the power to overturn any settlement deemed to be unfair made prior to these reforms.
“We are righting the wrongs of the past to ensure survivors can access the civil justice they deserve and be properly compensated for the appalling mistreatment they suffered as children,” Speakman said.
The Civil Liability Amendment (Child Abuse) Act 2021 was introduced in March and passed on Tuesday.
It allows the courts to set aside affected agreements if it is “just and reasonable to do so”.
Survivors who seek to have settlements set aside will not be held to have breached gag orders previously made with churches and other institutions.
This protection will be given even if survivors are ultimately unsuccessful in having their settlements set aside.
The change will potentially open up a raft of cases to public scrutiny which have previously been hidden by the non-disclosure agreements.
NSW is not alone in introducing such laws. Similar reforms have been made in Queensland, Victoria, Tasmania, Western Australia and the Northern Territory.
But the NSW law differs significantly in that it allows courts to set aside settlement agreements “for claims that were either impacted by the expiry of the limitation period or where an organisation was not incorporated and there was therefore no proper defendant to the cause of action, or both, if just and reasonable to do so”.
“By doing so, this bill ensures it is clear to survivors, their representatives, potential defendants and the courts the types of settlements that are covered by the reforms,” the NSW upper house MP Natalie Ward said earlier this year, when introducing the bill.
Child abuse campaigners have welcomed the new laws as “critical”. The Bravehearts chief executive, Alison Geale, said the laws would give survivors “the opportunity to escape these unfair deals and access the justice they have been denied”.
“For too long, survivors of child abuse have felt trapped in unjust agreements with powerful institutions,” she said. “These settlements would often include signed deeds, which prevented survivors from taking further civil action against the perpetrators.”
