CIVIL LIABILITY AMENDMENT (CHILD ABUSE) BILL 2021
Second Reading Debate
Ms JODIE HARRISON (Charlestown) (10:26): I speak on the Civil Liability Amendment (Child Abuse) Bill 2021. At the outset I acknowledge all the victim-survivors of child abuse. Without their tireless activism, without the courage and leadership that they show every day, reforms like this would not be possible. By coming forward, by telling their stories and by demanding justice, victim-survivors demonstrate their strength and resilience. To those who have yet to tell their stories, to those who may never be ready to tell their stories and to those who never got a chance to tell their stories, I would like to say this: Your strength must never be underestimated; your suffering may go unspoken, but it will not go unheard.
I acknowledge that the bill continues the reforms included in the Civil Liability (Institutional Child Abuse) Amendment Bill 2018 and the Limitation Amendment (Child Abuse) Bill 2016. I spoke in favour of both bills for precisely the reason I speak on the bill today. Proposed section 7D (1) of the bill allows for a claimant to apply to have an earlier settlement agreement set aside and to commence new proceedings relating to the claim resolved by that settlement agreement, while proposed section 7D (3) outlines the factors that are to be considered by the courts in determining whether setting aside a settlement agreement would be "just and reasonable", including the amount paid to the applicant under the agreement, the bargaining position of the parties to the agreement, the conduct in relation to the agreement of the defendant and their legal representatives and other parties involved, and any other matter the court considers relevant. This goes some way towards redressing the extreme power differential between many parties to these sorts of agreements. How many times have we heard from victim-survivors of the difficulties faced when trying to get justice from powerful and deeply entrenched organisations?
I note that under proposed section 7E (1) of the bill, courts are empowered to set aside agreements alongside documents that give effect to these agreements, including contracts, deeds of release, previous court orders and judgements, with the express exclusions outlined in proposed section 7E (2). This section excludes setting aside deeds of release signed under the National Redress Scheme; agreements between defendants where the agreement settled a cross-claim between two or more defendants, or where one defendant indemnified another; and contracts of insurance. The reason for these express exclusions is to ensure that an application to set aside a settlement agreement can be brought only by victim-survivors and their duly appointed legal representatives.
This long-overdue reform will offer more victims of child abuse a chance for justice and redress through the legal system. We all know that child abuse, particularly of the kind uncovered and examined in detail by the Royal Commission into Institutional Responses to Child Sexual Abuse, leaves wounds that, for many victim‑survivors, can never be fully healed. Being able to seek justice and compensation through legal remedies is key to helping victim‑survivors rebuild their lives.
The royal commission put the situation faced by victim-survivors in stark terms. Victim-survivors have suffered through hell at the hands of their abusers, and pursuing legal action can often re-traumatise them. The power imbalance that led to their abuse can even be replicated by the legal system, where individual claimants seeking redress are easily outmanoeuvred by the heavy-hitting legal teams retained by powerful institutions. Those institutions are often far more interested in limiting their liability and minimising settlements rather than owning up to their institutional failures and assisting victim-survivors in achieving some measure of justice.
The royal commission also made clear just how devastating and widespread this problem has been and continues to be. One submission to the royal commission revealed that more than 30 people who attended Catholic high schools in the Hunter Valley died by suicide, drug overdose or possible suicide because of links to known or alleged child sex offenders. Among those were three brothers from the one family, all of whom attended St Pius X High School at Adamstown and all of whom died of suicide or drug-related deaths. In 1984 another former St Pius X student died in a car crash when he was just 19 years old. Decades would pass before his parents would hear from his schoolmates that he had been sexually abused by priest John Denham, a convicted child sex offender. Denham's impact did not stop there. Days before he was due to start work as a teacher himself, a man took his life at Charlestown. Denham had taught him in his school days as well.
I doubt that there are many people in Australia who do not know or have not known someone who has been impacted by child abuse. I came to know Dave Owen in his late seventies. He was a neighbour of mine, a genuinely good person and a witness at the Royal Commission into Institutional Responses to Child Sexual Abuse. I have spoken about Dave in this place before, but his story bears repeating. Dave was born after his 12-year-old mother was raped. He was offered for adoption in a newspaper advertisement. He was physically, sexually and emotionally assaulted for years at an orphanage run by the Catholic Sisters of Mercy. In an interview with Joanne McCarthy, whose journalism was instrumental in launching the royal commission, Dave said:
The reason why people didn't believe when we told them years ago was because it was so outrageous and so inhuman, what was done to us. All I can do is tell how it happened.
…
The rethinking of it, you've got to relive it. You feel the floggings. You feel the fear and the pain. You go back to that time because it's always there.
Dave's abuse had lifelong impacts. Nothing can ever set right the wrongs done to him and to so many others who suffered through similar abuse. I join the Opposition in not opposing the bill because it will go some of the way towards rebalancing the scales of justice. I note the bill's two objectives. The first objective is to enable courts to set aside settled claims for child abuse where it is just and reasonable to do so, particularly in cases where specified legal barriers prevented victim-survivors from being fully compensated. The specific legal barriers referred to here are the time limitation periods in which to bring claims, which were amended by the 2016 Act, and the lack of a proper defendant to answer such claims, which was amended by the 2018 Act. Before those changes to the law, claims for damages were often disputed on the basis that they were brought outside of the time limitations or because there was not sufficient evidence to achieve a victory in civil litigation. Often those cases would be settled with a vastly reduced payout for victim-survivors.
The provisions of the bill will allow those settlements—the results of a system heavily stacked against victim‑survivors—to be set aside and for cases to be re-litigated. The second objective of the bill is to ensure that provisions restricting compensation for injury to offenders in custody do not apply to damages for child abuse. This will remedy any unintended consequence of reforms to the Civil Liability Act introduced in 2004, which meant that children abused in the Government's care receive less compensation than those abused outside of the Government's care. I am glad to see that this imbalance will finally be set right.
Other jurisdictions in Australia have made similar changes to their laws already, though the terms of those legislative amendments are not identical to those proposed by this bill. While I note that those changes go beyond the ones recommended by the royal commission, I have some reservations that the scheme may be narrowly construed. I have said before that our role as legislators is to make New South Wales a better place for children and young people. I expand that statement now. Our role as legislators is to make New South Wales a better place for those who were victimised as children and young people. Our role and our duty is to ensure that those who seek legal remedies for their victimisation have a fair shot. I will make one last point. Should the concerns I outlined above come to fruition, we in this Parliament must be open to amending this legislation further. We cannot treat this as a settled matter. We need to be ready to act to address any further imbalances in the legal process. I do not oppose the bill.
Ms JENNY LEONG (Newtown) (10:35): On behalf of The Greens I speak in debate on the Civil Liability Amendment (Child Abuse) Bill 2021. First and foremost, I acknowledge the stories that have been shared in this House by members on all sides, describing the levels of trauma, abuse and harm that were inflicted on children in our community for many years. I acknowledge that no matter what we say in this place and despite how hard it is to listen to those stories, it is much harder for the people who have suffered that abuse to continue to live with that trauma. Many people have not survived through that trauma. It is important for us to remember those people first and foremost, and we must provide them with the strongest justice.
The Greens welcome the bill and accept that its intention is good, but we believe that the current draft creates a seriously limited scheme that will see many unfair settlements unchallenged and therefore will pose a significant obstacle to justice for victims. The bill seeks to make changes to improve access to justice for survivors of child sexual abuse by improving access to settlements. A new part 1C is inserted, which gives courts the power to set aside agreements to settle sexual abuse claims if the previous agreement is an affected agreement. Affected agreements include those where limitation periods had expired or the claim was against an unincorporated association. The second change is to ensure that a person who suffers personal injury as a result of child abuse in custody is able to seek damages.
The Greens have worked in consultation with experts in the sector and will move an amendment to the bill in the upper House. The amendment will ensure that settlements can be put aside where it is just and reasonable to do so. New paragraph 7C (1) (c) will specify that affected agreements include those that were settled before the commencement of part 1B of the Act and that the agreement is not just and reasonable in the circumstances. The amendment will allow unfair historical settlements—for example, when a person who was assaulted was subject to the religious hold of the institution as part of the agreement—to be set aside. Given the vast power disparity between victims and survivors and the intuitions they had to take on to get justice, it is an appropriate amendment that we hope the Government will take seriously. We have heard about the level of trauma, harm and damage done to so many people and their families as a result of child abuse in our communities. We must not hold back on anything so that we can deliver justice and support to those victim-survivors so they can now live fulfilling lives.
This speech was part of a debate on the Civil Liability Amendment (Child Abuse) Bill 2021, which you can learn more about here. You can read the rest of the debate on Hansard.
