New legislation will set aside unfair settlements between institutions and victims of child sexual abuse. However, the current draft amendment fails to take into consideration a large portion of the victims.
NSW MLC David Shoebridge has made a formal submission to NSW Government to set aside all unfair settlements of child sexual abuse.
The current draft of the Civil Liability Amendment (Child Abuse Settlement) Bill 2020 (“the Bill”) doesn’t align with the discussion paper the Government produced for the purpose of the reform.
“My office has consulted with numerous stakeholders about the Bill and they universally reject the model proposed,” Greens MLC Shoebridge said in the submission to Attorney General Mark Speakman.
“It does not respect the direction of reform set out in your Department’s 2020 discussion paper and it does not open a fair or workable pathway to justice for victims of child sexual abuse.”
The discussion paper notes that survivors often entered into unfair settlements under time pressure and in some cases without independent legal advice.
Power imbalance between institutions and victims
“The Royal Commission found there was often a power imbalance between the survivor and the defendant when negotiating claims, with the nature of the trauma suffered by the survivor creating a significant power imbalance during negotiations,” the discussion paper stated.
Queensland, Victoria, the Northern Territory and Western Australia have all implemented a discretion for courts to set aside past judgements. This is in cases where there is “just and reasonable” cause to do so.
The current drafting of the bill fails to deal with a large number of cases that would otherwise fit under this bill.
“This scheme fails entirely to deal with the thousands of cases where there may well have been a viable cause of action but the unfair bargaining positions of the parties, the mental harm suffered by the survivor and/or the dominant views of abusive institutions (and the legal profession) was such that unfair and inadequate agreements were accepted as normal,” Shoebridge said.
“The Bill must not progress in its present form, if it was to do so it would be an insult to victims and would also detract from the very real and meaningful reforms you have previously shepherded through Parliament that have provided genuine and meaningful reform for survivors.”
If you are a victim of childhood sexual abuse, contact O’Brien Criminal & Civil Solicitors to discuss your potential claim.